Van der Elst work transfer within EU/EEA and Switzerland

The Van der Elst process derives from a 1994 ruling by the European Court of Justice regarding the right of an EU company to provide services within the EU. It generally allows a non-EEA national who is legally employed by a company in an EU country to provide services on a temporary basis to a company in another EU country on behalf of his/her employer without the need to obtain a work permit.

See also – http://eur-lex.europa.eu/

A further Judgment was delivered in 2006 (Case C-244/04) regarding whether or not the non-EEA employee should have an employment history for a specific duration of time with his/her employer. The twelve months being imposed by some countries was considered disproportionate. However as the Court did not suggest what period of employment might be acceptable, a minimum period is not required before posting an employee to the State for the purpose of providing a service for a limited period.

See also - http://curia.europa.eu/juris/

In general, "temporary" means that an employee should be required in the host EU country on a short term basis only . The contract should be specific as to duration and should not be for such a length of time that the individual loses rights of residency in the sending EU country or becomes an integral part of the workforce of the host EU country.

Conditions

(i) Applications will be assessed on a case-by-case basis.

(ii) Permission to work in the State under the Van Der Elst ruling will be granted for the duration of temporary/short term contracts up to a maximum of 12 consecutive months.

(iii) The employee must be:

  • (a) lawfully resident in the EU country in which the employer is established;
  • (b) lawfully employed by the employer in the sending EU country;
  • (c) on the payroll of the employer in the sending EU country.

(iv) Duration of permission to remain in the State in order to provide a service will never exceed the expiry date of the lawful residence of the employee in the sending EU country or the expiry date of the employee’s Passport.

(v) The employee may not take up any other employment in the State other than that for which permission was granted and on conclusion of the temporary/short term contract the employee must return to the sending EU country.

(vi) The employee is not entitled to permanently reside in the State.

(vii) Family members may not accompany or join the employee (except as visitors or having applied for and been granted an immigration permission in their own right).

Requirements

Persons who require an entry visa to the State should apply using the online visa application form. When entering type of visa required choose "other" from the drop down menu and enter "Van Der Elst" in the text box. The documentation listed at (ii) below must be provided in support of the application. Find out how to apply

(ii) At the port of entry, all persons must have available for inspection –

  • (a) Passport (which should be valid for at least six months following the stated departure date from the State).
  • (b) A letter from his/her employer in the sending EU country which:
    • o states that the individual concerned is legally resident and employed in the EU country where the employer is based and will be returning there on completion of the contract;
    • o gives details of the contract (duration should be specified);
    • o gives the name and contact details of the Irish based host company.
  • (c) A letter from the Irish based host company giving details of the contract (duration should be specified) and reasons why the employee is required.
  • (d) Residence/ID card issued by the sending EU country.
  • (e) Details regarding accommodation arrangements in the State.
  • (f) Evidence of comprehensive medical insurance.

(iii) All persons remaining in the State for more than 90 days must register with the Garda National Immigration Bureau and pay the associated registration fee.

All persons wishing to enter the State will be subject to usual immigration procedures at the port of entry. Permission to enter the State is at the discretion of the Immigration Officer.

Not eligible

(i) Self employed individual.

(ii) Holder of an Intra Company Transfer.

The Van der Elst ruling applies only to non-EEA employees of an EU-based company which has won a contract in another EU State. Therefore, a person who already holds an Intra Company Transfer in an EU-based company has been transferred to that company on a temporary basis whilst remaining an employee of the sending company / employer and so is not eligible

(iii) Company Director if the actual status in the company is above and beyond that of the role assumed generally by employees and instead is deemed to be that of an "office holder" (with responsibility for making key decisions and exercising judgement in relation to legal and financial affairs).

Dec 2015