The new Aliens Residence Act does not use the full potential of digitalisation. Deadlines are to be decided by lottery, highly skilled foreigners find it difficult to relocate

PPCE - 2023/04/24


The law on the residence of foreigners on our territory determines, among other things, the conditions under which Czech companies and universities can recruit experts from abroad. Its amendment is intended to enable the digitisation of the lengthy immigration process and set the conditions for many years ahead. Yet it contains more holes than Swiss cheese. The draft amendment to the law reached the inter-ministerial committee today.

The new form of the law on the residence of foreigners on our territory is intended to enable digitisation and thus streamline the entire agenda. It is to be submitted to the government and parliament for approval later this year. It should come into force in mid-2025. “The legislative process goes hand in hand with the creation of a digital immigration system. It should be completed next year and from 2025 onwards,” says Miroslav Mejtský, a partner at Petyovský & Partners who has been working on immigration policy for more than 15 years.

Digitisation only halfway and the persistence of resortism

Even the new arrangements, however, will not remove the complexity of the immigration process. The digital system will only replicate the current administrative one, where the biggest problem in practice is the length of the immigration procedure for relocation from abroad. According to Miroslav Mejtský, simply transferring paper to a screen will not consolidate the complicated processes fragmented between three ministries – Foreign Affairs, Interior and Labour and Social Affairs. “The new text does envisage the creation of a cloud storage for immigration documents. However, this will more or less act as their repository without further offloading or evaluation of the documents provided. Applicants who submit their applications electronically will still have to submit documents in paper form for inspection. The documents will then travel between ministries where officials will evaluate them as they do now.”

Untapped potential will not allow a move away from the outdated quota system

At a time when advanced economies know that they cannot survive without well-managed migration and are introducing sophisticated systems to target it, the Czech Republic is expanding its outdated quota system. The quota system was introduced into Czech migration legislation in 2019, and even then experts pointed to its obsolescence as a migration management tool.

“Quotas in the Czech concept only represent the capacities of the embassies and do not give us a choice as to what kind of foreigner – for example, in terms of integrability, experience and education – will get a work and residence permit. The system is then overwhelmed by those foreigners who can “click fastest” and secure an appointment, instead of those who would be most beneficial to the economy. The congestion in the system then drags out the whole process,” says Mejtský, who has long campaigned for easier migration policy.

He therefore believes that if the tools of digitisation were fully exploited and the agenda effectively redistributed, quotas could be abandoned. However, the current form of the new legislation shifts even more competences to the embassies, such as assessing the accuracy of immigration documents. “The potential of digitisation will not be used to its full potential. There is already software that can process documents and assess their authenticity,” Mejtský says, explaining that it would be much more efficient if the Ministry of the Interior used a digital system to extract electronically submitted applications for work and residence permits in the Czech Republic and, in the event of a positive decision, instruct the relevant embassy to conduct an entry interview and issue a visa.

The possibility of drawing lots for a meeting date at the representative office is a source of great embarrassment. “At the beginning of the 21st century, when European countries are fighting over every talent, targeting them and making it easier to enter their territories, we are introducing a lottery system to reduce our competitiveness even further. This will certainly not help the Czech economy, and we will watch as potential investors prefer to choose neighbouring countries where they can move their key people more efficiently. ” says Mejtský.

We want to make the migration process more difficult for highly skilled professionals

A European tool to attract highly skilled professionals is the so-called Blue Card. This has recently undergone changes at European level to make it even more attractive. For example, the recognition of non-formal education (work experience) is a major milestone, which is clearly a step in the right direction. As long as a foreigner has at least three years’ experience, he or she will not have to have a relevant degree. However, this will only apply to the professions listed in the decree in the Czech context.

The new Code, unlike the current regulation, introduces mandatory recognition of foreign education – the so-called nostrification. Highly qualified foreigners who want to work in our territory will have to nostrify their education. Today, it is sufficient to present a document, such as a university diploma, and its nostrification will be requested by the Ministry of the Interior only in cases of doubt.

“The nostrification process is not designed to be a mandated cog in the wheel. It’s a complicated and time-consuming process that universities have to do,” says Mejtský, explaining why. Especially when it comes to IT.” He cites Slovakia as a cautionary example, where the nostrification process has been in place since the early days of blue cards.

Employers will be in a stronger position to control legal employment

Employers are responsible for the legality of their foreign workers’ employment, but do not have the tools to effectively monitor their employees’ immigration management. This is one of the reasons why the new legislation puts employers in the position of a “guarantor” who, through a new digital system, will be able to comprehensively monitor the immigration status of their employees. “This is clearly a step in the right direction, as currently the employer has to rely on the information provided by the employee. Therefore, he may learn about possible illegal employment late and still be held fully responsible for it,” Mejtský said.

Many employers therefore hire specialist companies to take care of their foreign employees. The new law envisages that only attorneys will be entrusted with the representation of both companies and foreigners. “Companies will have to rethink their supplier relationships, attorneys today do not deal with immigration law in general and representation is often performed by insufficiently qualified attorneys. This also leads to delays in immigration proceedings and dissatisfaction among companies that have chosen unsuitable counsel. Hopefully, this change will bring more professional representation of foreigners and reduce unfair practices that occur on the market,” concludes Mejtský.