Introduction
Many of you will have read in many places about the new immigration code that arrived almost in tandem with 2024. With this series of articles, we will try to cover the relevant topics and changes not only in general terms, but also by answering more specific questions that may affect clients in general, as practitioners. With this aim in mind, the topics covered will essentially cover employment issues.
However, in order to put the changes and knowledge into context and to assist later interpretation, the first part of our initiative presents a summary of the changes to the legislation referred to.
Old and new
Perhaps the most noteworthy change between the former (i.e. the Harmtv.) and the new legislation (i.e. the Btátv.) is that the legislator has moved from a more general to a more categorical and in many respects more restrictive form of regulation. To be specific, residence in Hungary for employment purposes is covered by several types of permits that did not exist before or were regulated differently from the previous ones, but there are also permits that have been created to unify the ‘scattered’ provisions (see the National Card). The mechanisms practised under the Harmtv. are therefore not applicable under the Btátv. or only with significant differences.
In addition, the Btátv. also sets out protectionist objectives. For example, it has been declared that the new law aims to tighten “the legal titles and conditions of residence and employment of foreign nationals in Hungary“, to give preference to the employment of Hungarian workers over foreigners and to create a barrier against mass immigration.
It is important to note, however, that the new Code and its implementing regulation do not mean that the previous rules no longer need to be applied, or in certain cases may not apply. In fact, there are certain purposes of residence and situations in which the Harmtv. continues to apply, and it is necessary to be aware of it. Such a ‘surviving’ provision applies, for example, to residence permits to ensure family reunification, which (still) may be issued under the previous rules, and which may be of particular importance for certain groups of workers, even if (only) in terms of motivating and retaining employees.
Third-country national vs. person with the right of free movement and residence
The legislative background of course maintains the distinction between third-country nationals and persons having the right of free movement and residence (mainly EEA nationals and their family members). In this respect, it is suggested to keep in mind the practical aspect that in the case of a third-country national whom the employer knows will “join” or arrive with an EEA national entitled to a longer stay, the employer should check in advance whether such family member is covered by the Act on Admission and Residence of Persons with the Right of Free Movement and Residence and thus effectively exempted from the Btátv.
Categories by length of stay
The Btátv. basically distinguishes between three categories depending on how long the third-country national wishes to stay in Hungary, so the type of permit required can be decided on the basis of this period:
- short: i.e. any stay of no more than ninety days in any one hundred and eighty days is planned by the third-country national. This requires – for entry purposes – “only” a visa, or even none for certain nationals.
- permanent: this category includes planned stays in Hungary of more than ninety days in any one hundred and eighty days. Stays of this duration are subject to authorisation, i.e. the person concerned must apply to the immigration authority for a permit adapted to the purpose of his/her stay, which is in fact pre-selected on the basis of the purpose of the stay.
- long-term: this is a group of residence permits and cases for indefinite term, and of course subject to additional conditions compared to the previous categories.
The second, and most commonly used, category and duration of the authorisation is always purpose-bound. For this reason, it is very important that the employer and the person concerned consult an application specialist beforehand on the type of permit that is actually suitable for the purpose, as an incorrect application can lead to a significant delay in the establishment of the employment relationship.
As an illustration, a very simplified rule of thumb, but at least reminiscent of a preliminary assessment of the conditions for authorisation, has been modelled on the known principle. This means that all third-country nationals are covered by the Btátv., but not all persons covered by the Btátv. need a permit from the labour authority (either separately or combined with their residence) to work (as mentioned in the previous point, there are of course exceptions in the direction that the third-country national is not covered by the Btátv., but in practice these are the rarest.)
Summary
In general terms, the new legal regime allows some people to work in Hungary under stricter rules, while others – if the conditions are met – can benefit significantly. In order to comply with the stricter requirements and to benefit from such potential “advantages”, it is recommended that all concerned seek prior advice on this issue. Should any questions arise in this respect, our office is of course at your disposal to help you untie any knots.
Author: dr. Eszter Bohati, lawyer – CLVPartners
