Authorisation of stay as a salaried worker: the Article 42 conditions, the ADEM certificate and the rule against applying from inside Luxembourg

The judgments

The question

A Luxembourg employer that wants to hire a national of a country outside the European Union, in an ordinary salaried job that does not fall within one of the special categories (highly qualified worker, intra-corporate transferee and the like), needs the Minister responsible for immigration to grant that person an authorisation of stay as a salaried worker. The conditions are in Article 42(1) of the Law of 29 August 2008 on free movement of persons and immigration (“the 2008 Law”). They are cumulative and tie the immigration file to the labour market procedure run by the National Employment Agency (Agence pour le développement de l’emploi, ADEM). Two procedural rules sit on top of them: the application must be made before the worker enters Luxembourg (Article 39(1)), and an incomplete file may be rejected (Article 42(4)).

The seven decisions reviewed here, all from the Tribunal administratif (Administrative Tribunal), deal with the points on which these applications most often fail. Two concern the required professional qualifications and how they are measured against the ADEM certificate. Two concern the condition that the job serves the economic interests of the country. Three concern foreign nationals who were already in Luxembourg, two of them after a failed asylum application, and whose applications were declared inadmissible without any look at the Article 42 conditions. The decisions matter to employers, HR teams and advisers who prepare these files, and to workers who are tempted to start the process once they are already in the country.

The legal framework

The categories of stay and the work permit

Article 38 lists the grounds on which a third-country national may stay for more than three months. Point 1(a) covers a temporary authorisation of stay as a “salaried worker referred to in Article 42”, next to the special categories of highly qualified, intra-corporate transferred, posted and seasonal workers. The ministerial refusals of 18 July 2017, 30 May 2018 and 18 December 2023 end with the same subsidiary finding, that the applicant has not shown that he or she meets the conditions of any other category in Article 38. Since the Law of 7 August 2023, Article 38-1 states expressly that every third-country national must hold a work permit to engage in a salaried activity unless exempted; the decisions of 2018 and 2019 predate that article. A “salaried activity” is any paid economic activity carried out on behalf of and under the direction of another person (Article 3(e)).

The four conditions of Article 42(1)

Under Article 42(1), the authorisation of stay and, where required, the work permit are granted after the Minister has verified whether, in addition to the conditions of Article 34 (which governs entry and short stays and is outside our translated selection), the following conditions are met:

• the priority of recruitment enjoyed by certain workers under Article L. 622-4(4) of the Labour Code is not prejudiced (point 1);
• the pursuit of the activity in question serves the economic interests of the country (point 2);
• the applicant has the professional qualifications required to pursue the activity in question (point 3);
• the applicant holds an employment contract concluded for a post declared vacant to ADEM in the form and under the conditions laid down by the relevant legislation (point 4).

The 2018, 2019 and 2020 decisions that apply Article 42 describe these conditions as cumulative. The wording quoted in the judgments is the wording of our current text; Article 42 was last amended by the Law of 8 March 2017, before any of the ministerial decisions challenged in these cases.

If the Minister considers that one of the conditions is not met, he or she must, before refusing, refer the file to the committee established by Article 150 (Article 42(2)). In the decisions this is the commission consultative pour travailleurs salariés (advisory committee for salaried workers); in each refusal on the merits the Minister followed its negative opinion. The Minister must decide on a complete application within four months, failing which the applicant may treat it as rejected (Article 42(3)). That period is suspended while the applicant is given time to supply missing documents, and if they are not supplied within the time set “the Minister may reject the application” (Article 42(4)). The refusals on the merits in the 2018, 2020 and February 2026 judgments rest on Article 101(1), point 1, of the 2008 Law, which is outside our translated selection.

The labour market test: Article L. 622-4 of the Labour Code

The link between immigration and the labour market is Article L. 622-4 of the Labour Code, whose paragraphs 1 to 5 the Tribunal quotes in its 2018 and 2020 judgments. Every post must be declared to ADEM. The declaration must contain the employer’s identity, a description of the post, “the profile required for each post declared, specifying at least the level of training, professional aptitude and qualification”, and the working and pay conditions offered. ADEM examines whether the offer can be filled by a person covered by Article L. 622-5 of the Labour Code. If, within three weeks of the declaration, ADEM has not proposed a candidate who meets the required profile, the employer may ask the director of ADEM for a certificate confirming its right to recruit “the person of its choice” for that post, without prejudice to the 2008 Law. The certificate is to be issued within five working days of the request.

The Grand-Ducal Regulation of 5 September 2008 on the conditions and arrangements for issuing an authorisation of stay as a salaried worker lists the documents an application must contain. Article 2 of that regulation, as quoted in the 2020 judgment, requires a copy of the full passport, a curriculum vitae, copies of diplomas or professional qualifications (translated where not in French, German or English), a dated and signed employment contract that complies with Luxembourg labour law, and a recent ADEM certificate under Article L. 622-4(5) or, where point 1 of Article 42(1) does not apply, proof that the post was declared; a single application to reside and work must also include a criminal record extract or affidavit. The 2018 judgment quotes article 2 “in its version in force when the decision under appeal was adopted” (18 July 2017), which still required certified copies, a cover letter from the applicant and, for the single application, a birth certificate. The 2020 judgment does not say which version it quotes, but the two quotations differ.

Applying before entry: Article 39

Article 39(1) provides that an application for an authorisation of stay under Article 38, point 1, “must be submitted by the third-country national to the Minister and must have received a favourable decision before his or her entry into the territory. The application must, on pain of inadmissibility, be submitted before the third-country national enters the territory.” There are two exceptions. Under Article 39(2), in exceptional cases, a third-country national staying lawfully in Luxembourg for up to three months may be authorised to apply within that period, if he or she proves that all the conditions for the category are met and that returning to the country of origin would be an “unjust burden” (charge inique). Under Article 39(3), the holder of an authorisation of stay of more than three months (other than the persons referred to in Articles 49bis, 60 to 62bis and 90) may, before the residence permit expires, apply for an authorisation on another ground if he or she meets all its conditions.

Our current text of Article 39(1) excludes from the rule the authorisations governed by Articles 78(3) and 89 and is “without prejudice to Article 49bis(1)”. Our consolidation lists the Law of 4 June 2024 among the laws that amended Article 39. The decisions of 2019 and the ministerial decisions of January and May 2024 in the 2026 case on a Cape Verdean applicant predate that law; the Tribunal quotes paragraph 1 in each case with the exceptions left out (“[…]”), so the judgments do not show whether the exceptions then read differently. The 2025 decision in the Venezuelan case postdates it, and the Tribunal there quotes Article 39(1) “in its version applicable to this dispute”. Paragraphs 2 and 3, as quoted in the 2019 judgment (and paragraph 2 as quoted in the Venezuelan case), read as our current text does.

Related provisions outside our translation

Article 78(3) of the 2008 Law (authorisation of stay for humanitarian reasons of exceptional gravity), Article 34 (short stays), Article 35(1) (no salaried activity without authorisation), Article 100(1) (irregular stay), Article 101(1) (refusal), Article 111 (order to leave), Articles 109 and 113 (appeal) and Article 150 (the advisory committee) are not in our translated selection and are cited in plain text. Under Article 113, read with Article 109, the remedy against these refusals is an action for annulment (recours en annulation), not an appeal on the merits (recours en réformation). In every judgment where an applicant asked for reformation, the Tribunal declared itself without jurisdiction to hear that claim and examined only the annulment claim, in which it reviews legality and the facts as they stood before the Minister.

Qualifications measured by the employer’s own profile: Tribunal administratif, 16 November 2018, no. 40277

Facts

A Brazilian national first applied on 11 February 2015 for an authorisation of stay for a salaried activity. The Minister for Immigration and Asylum (ministre de l’Immigration et de l’Asile) refused on 10 August 2015 on the ground that the work did not serve the economic interests of the country because it was only for a fixed term; after an informal appeal (recours gracieux) of 29 October 2015, he confirmed the refusal on the ground that she had not proved the required professional qualifications (p. 1).

Her mother, settled in Luxembourg for many years, had had her own diplomas recognised and held a business permit. Her business had grown, and she asked ADEM for someone qualified in beauty care who also had accounting skills. On 14 February 2017 ADEM, having found no suitable jobseeker, issued a certificate allowing her to recruit the person of her choice for the post of “esthéticienne-comptable” (beautician-accountant) (pp. 2–3). The daughter lodged a new application through her lawyer on 25 February 2017, completed on 21 April and 13 June 2017 (pp. 1–2).

The Minister refused on 18 July 2017 under Article 42(1), point 3. Pursuing the occupation of beautician requires a level at least equal to the Luxembourg vocational aptitude diploma (diplôme d’aptitude professionnelle, DAP). By letter of 18 May 2017, the Ministry of Education, Children and Youth had stated that the “Prime Cursos do Brasil” certificate and the continuing training certificates issued by the “Institut Blanch Marie” in São Paulo in 2015 could not be recognised, because they did not certify an initial vocational training of three years but continuing or distance training. The advisory committee gave a negative opinion on 13 July 2017, which the Minister followed (p. 2). The refusal was confirmed on informal appeal on 24 October 2017; the action before the Tribunal, lodged on 17 October 2017, is directed at the decision of 18 July 2017.

The grounds

The applicant argued that she met all four conditions: ADEM’s certificate protected the priority of recruitment; she intended to settle permanently and carry on her mother’s business, which served the economic interests of the country; she held diplomas in accounting and in beauty care and had more than three years of experience; and she had an employment contract (p. 3). By requiring equivalence with the Luxembourg DAP, the Minister had added a condition to the law, which speaks only of “professional qualifications required” and not of a particular diploma, still less a Luxembourg one. She had in fact followed a three-year course in two parts, theoretical and practical, just as Luxembourg pupils do. In reply she added that qualifications can be acquired by experience as well as by a diploma, and that she had offered to take new diplomas on arrival. In the alternative, she held a university degree in accounting and part of the job was to keep the employer’s accounts (pp. 3–4).

The Tribunal’s reasoning

Only the third condition was in dispute. Article 42 does not say which qualifications or which diploma are required, but the ADEM certificate of 14 February 2017 showed that the person to be recruited as beautician-accountant had to hold a beautician’s DAP (p. 6). The Tribunal then set out the principle on which the later case law builds:

Since the professional qualifications required within the meaning of Article 42(1), point 3, of the Law of 29 August 2008 are the conditions laid down by the employer itself, and since it is precisely on the basis of those criteria that ADEM analyses the labour market, the applicant’s argument that it would suffice for her to have training similar to that of Luxembourg students, or professional experience exempting her from producing the required diploma, cannot succeed.

The Ministry of Education’s decision of 18 May 2017, which was “a priori not challenged”, stated that her training was not recognised as equivalent to the DAP that the employer had required. The Minister had therefore confined himself to assessing, as a matter of fact, the qualifications required by the ADEM certificate and had not added conditions to Article 42(1) (p. 6).

The alternative argument failed as well. The post for which ADEM had issued its certificate expressly combined the two qualifications of beautician and accountant. Those qualifications must also be held on the day the Minister decides, so an offer to complete one’s training after being hired could not be accepted (pp. 6–7).

Outcome

The Tribunal declared itself without jurisdiction for the main claim for reformation, held the alternative claim for annulment admissible, dismissed it as unfounded, and ordered the applicant to pay the costs (p. 7).

Cumulative qualifications and a new vacancy declaration: Tribunal administratif, 8 July 2020, no. 42284

Facts

On 16 January 2018 ADEM authorised a limited liability company to recruit a person of its choice for a post of “technico commercial” (technical sales representative), for which the profile required a secondary technical education diploma with IT and marketing skills, an excellent level of English, Croatian, Serbian and Bosnian, and at least ten years’ experience. No qualified jobseeker registered with ADEM met the profile (p. 1). A Montenegrin national signed a permanent employment contract with the company on 16 March 2018 and applied for a temporary authorisation of stay as a salaried worker on 4 April 2018 (pp. 1–2).

After a negative opinion of the advisory committee on 16 May 2018, the Minister refused on 30 May 2018 under Article 42(1), point 3. Nothing in the file showed that the applicant held the diploma stated in the ADEM certificate, and a certificate from a former employer showed that he had worked “in the commercial unit of Internet Café - video games” from September 2008 to November 2015, a total of seven years (p. 2).

In his informal appeal of 29 August 2018 the applicant’s lawyer wrote that the decision was “all things considered, not inappropriate in view of the file”. The company had hired him precisely because it had found no candidate meeting the criteria in its advertisement, and he was the only one who “more or less” matched the profile. He did not hold the secondary technical diploma required by ADEM but had about ten years’ experience in the field, and could document the three years after 2015 (p. 3). The Minister confirmed his refusal on 25 October 2018, noting that the lawyer had confirmed the absence of the diploma (pp. 3–4).

The grounds

Before the Tribunal the applicant changed his line. He claimed qualifications “at a level higher than the secondary technical studies required”: an ECDL (European Computer Driving Licence) certificate, which he presented as a secondary diploma, and university courses at a faculty of business management in Montenegro between 2007 and 2011. He also relied on the company’s view that he was qualified “in the absence of finding a person as recommended by the ADEM certificate”, and on further experience in technical sales with another company since 5 November 2015, which the Minister had not taken into account (p. 4).

The Tribunal’s reasoning

After quoting Article L. 622-4 of the Labour Code, Article 42 of the 2008 Law and article 2 of the 2008 Regulation, the Tribunal listed the four cumulative conditions and held that only the third was in dispute (pp. 4–6). As in its 2018 judgment, it read the required qualifications off the ADEM certificate: a secondary technical diploma in IT and marketing, excellent command of four languages, and at least ten years’ experience in IT and marketing. The Minister contested only the first and third of these (p. 6).

No such diploma had been produced to the Minister or to the Tribunal. The curriculum vitae showed attendance at a faculty of business management, but no diploma certifying secondary technical studies, and the applicant had admitted in his informal appeal that he had none. The certificate dated 25 December 2017 he produced recorded only two days of training: Windows, MS Outlook and MS Word on 24 December 2017, and MS Excel, MS PowerPoint and MS Access on 25 December 2017. It was neither a secondary technical diploma nor evidence of any over-qualification (p. 7). The Minister had therefore made no manifest error of assessment. Because the qualifications required for the post are cumulative, the Tribunal did not need to examine whether the ten years’ experience was established (p. 7).

The employer’s willingness to accept him did not change that. The Tribunal explained the mechanism and drew the practical consequence:

The professional qualifications required within the meaning of Article 42(1), point 3, of the Law of 29 August 2008 are the conditions set by the employer itself; it is precisely on the basis of those criteria that ADEM proposes to the employer potential candidates meeting the profile required for the post declared vacant, and it is only where no candidate registered with ADEM meets that profile that a certificate is issued confirming the right to recruit the person of its choice, who must nevertheless also have the required qualifications. Thus, if the company is willing to hire a less qualified person than originally planned, it must make a new declaration of the vacant post to ADEM stating the new qualifications required.

The new declaration allows ADEM to examine whether the new offer can be filled by a person covered by Article L. 622-5, in accordance with Article L. 622-4(4) (p. 8).

Outcome

The action for annulment was admissible but dismissed as unfounded, and the applicant was ordered to pay the costs (frais et dépens) (p. 8).

Economic interests and a suspicion of fraud: president of the Tribunal administratif, 25 January 2019, no. 42234

Facts

This is an order (ordonnance) of the president of the Tribunal on an application for interim measures, made alongside an action on the merits lodged the same day under no. 42233. An Albanian national applied on 28 November 2017 for a temporary authorisation of stay as a salaried worker. On 22 January 2018 the Minister asked him for a certified copy of his permanent residence permit in Italy and objective proof of his very good command of Moldovan and Italian. On 19 March 2018 the employer, a limited liability company, e-mailed the Minister certifying that he spoke Italian “and if necessary Moldovan” (p. 1).

On 29 May 2018 the Minister rejected the application under Article 42(4) because the letter of 22 January 2018 had gone unanswered and the file remained incomplete. He also noted that the applicant had been registered with a company as a painter since 1 September 2017, although under Article 35(1) he had no right to work without authorisation; that he no longer met the conditions of Article 34 (stay of up to three months in any six-month period); that his stay was therefore irregular under Article 100(1); and he ordered him to leave within thirty days under Article 111 (p. 2).

On 22 June 2018 the applicant sent the Minister an Italian long-term resident permit, which the order dates 31 May 2012 (the confirmatory decision gives 31 March 2012), and a new vacancy declaration for a post of “applicateur Mortex” (applier of Mortex, a waxed-concrete coating) requiring very good Albanian and good Italian (pp. 2–3). The Minister treated the letter as an informal appeal and referred the file to the advisory committee, which gave a negative opinion on 20 September 2018. On 16 October 2018 he maintained his refusal, now on the basis of Article 42(1), point 2. The condition is assessed “according to the economic needs of the country and more specifically the specific needs of the labour market”; the file said nothing about future lasting integration in the labour market, and the low-skilled work of a Mortex applier brought no know-how giving the sector a competitive advantage, the “certification BEAL” not being a specific qualification (p. 3).

The claim

The applicant and the company argued that ADEM had confirmed on 20 July 2017 that no qualified employee was available on the Luxembourg labour market, that he had the qualifications for the post, that there was a real need for staff in the company and on the labour market generally, that working with the Mortex product required special training and in-depth knowledge, and that the company had no other employee able to do the work or train others (p. 4).

The president’s reasoning

Under Articles 11 and 12 of the amended Law of 21 June 1999 on procedure before the administrative courts, a stay of execution or a safeguard measure requires both a risk of serious and irreparable harm and grounds that appear serious, conditions to be applied strictly (pp. 4–5). The president found neither.

The application merely asserted that some conditions were met. It ignored the two legal bases of the refusals, Article 42(4) and Article 42(1), point 2; a ground of annulment must identify both the rule allegedly breached and how it was breached. Nor did the applicants explain what difference the Italian long-term resident permit made, having taken no position on Article 85(2) of the 2008 Law (p. 5).

On the substance, the president doubted that painting work, even the specific application of Mortex, served the interests of the country, and it did not appear that the applicant had the qualifications for the post as declared, which included a very good level of Italian and Moldovan. He then turned to the use made of the ADEM documents:

This vacancy declaration, as endorsed by ADEM on 20 July 2017 and relied on in support of the action, is valid only “for the post declared under offer no. …”. The company intends to rely on that offer not only to hire Mr …, but also another Albanian national, as appears from the parallel case no. 42236, which allows the undersigned to suspect an attempted fraud, the company clearly seeking to hire several different persons under cover of a single vacancy declaration.

The second declaration of 22 June 2018, requiring Albanian and Italian rather than Italian and Moldovan, for a post for which the applicant again appeared to be the only suitable candidate (the same argument being made for another Albanian national in case no. 42236), only reinforced that suspicion: the vacancy declarations were being adapted to the profiles of the workers the company employed irregularly (p. 6).

The president also cited case law on Article 42(1), point 2. As cited there, the Cour administrative (Higher Administrative Court) held on 28 June 2016 (no. 37493C) that wanting to hire people for an activity does not automatically mean that the activity serves the economic interests of the country, since that reading would reduce the condition to nothing and give it no added value over the other three; and the Tribunal held on 23 January 2017 (no. 37387) that an activity serves those interests where there is a proven need for labour in the sector matching the applicant’s training, so that only a genuine shortage of workers in a field allows the hiring of a third-country national with those qualifications to serve the economic interests of the country (p. 6). It was hardly certain that employing a painter with no particular skills unavailable on the Luxembourg market served a real economic need, the Mortex technique apparently being learnable in a few hours in courses open to professionals and private persons and given by the manufacturer in Belgium (pp. 6–7).

Outcome

The grounds were not serious, and the applicants had said nothing about serious and irreparable harm. The application for interim measures was rejected in both its limbs and the applicants were ordered to pay the costs (p. 7).

Economic interests when ADEM finds candidates: Tribunal administratif, 3 February 2026, no. 50291

Facts

A Montenegrin national applied on 18 July 2023 for an authorisation of stay as a salaried worker under Article 42. On 5 October 2023 the Minister for Immigration and Asylum acknowledged receipt and asked for further documents, which were supplied on 6 November 2023. On 22 November 2023 the advisory committee unanimously gave a negative opinion, ticking the box “economic interest of the country” as the ground (p. 1).

On 18 December 2023 the Minister for Home Affairs (ministre des Affaires intérieures), who had meanwhile taken charge of the file, refused under Article 42(1), point 2, and Article 101(1), point 1. The decision gave two reasons. First, according to the information available to the Minister, ADEM had been able to propose to the employer four jobseekers who had the profile required for the post, and the employer had not retained them “without valid reason”. Second, the employing company, a simplified limited liability company (SARL-S), had substantial debts to the Joint Social Security Centre (Centre commun de la sécurité sociale). It was therefore not established how the activity served the economic interests of the country (pp. 1–2).

The Tribunal’s decision

The Tribunal never examined these reasons. The action was lodged on 5 April 2024, seeking annulment and, in the alternative, reformation. The Tribunal first held that it lacked jurisdiction for reformation, since no statute provides for an appeal on the merits in matters of authorisation of stay (pp. 2–3). The applicant’s lawyer then informed the Tribunal on 16 October 2024 that he had withdrawn. The registry wrote to the applicant at the address in the application, inviting him to instruct another lawyer and warning that his action risked dismissal for lack of interest. No new lawyer appeared, and at the hearing of 27 January 2026 the Tribunal raised of its own motion, under Article 30 of the Law of 21 June 1999, whether the applicant still had an interest in pursuing the action (p. 3).

Interest must exist when the action is brought, but its continuation must be checked on the day of judgment, since the courts do not exist to give litigants “purely platonic satisfaction” (pp. 3–4). The first person able to show such interest is the litigant himself, and a persistent failure to show any interest in the proceedings is enough to find that the interest required by law no longer exists (p. 4). Since there had been no new mandate or new lawyer in accordance with Articles 5(5) and 10 of the Law of 21 June 1999, the applicant had shown no further interest in the proceedings he had begun (p. 4).

Outcome

The Tribunal declared itself without jurisdiction for the reformation claim, declared the claim for annulment inadmissible, rejected the claim for a procedural indemnity (indemnité de procédure) of €3,000 under Article 33 of the Law of 21 June 1999, and ordered the applicant to pay the costs. The judgment is given as an adversarial one (contradictoirement) despite the lawyer’s withdrawal (pp. 4–5). The ministerial reasoning therefore stands untested by the court, but it shows what the Minister treats as relevant under point 2: candidates proposed by ADEM and rejected by the employer, and the employer’s social security debts.

Applying from inside Luxembourg after a failed asylum claim: Tribunal administratif, 21 May 2019, no. 41275

Facts

A Congolese national applied for international protection on 12 June 2015 under the Law of 5 May 2006, since repealed by the Law of 18 December 2015. The Minister rejected the application on 17 January 2017 and ordered him to leave. His appeal was finally dismissed by the Cour administrative on 27 March 2018 (no. 40738C), upholding a judgment of the Tribunal of 9 January 2018 (no. 39119) (p. 1). On 5 April 2018 he applied for an authorisation of stay for a salaried activity on the basis of an apprenticeship contract signed on 23 October 2017 with a public limited company (pp. 1–2).

On 14 May 2018 the Minister declared the application inadmissible under Article 39(1). Having applied for international protection on 12 June 2015, the applicant had entered Luxembourg on that date at the latest; the conditions of Article 34(2), point 5, were no longer met, his stay was irregular under Article 100(1), and he was to leave within thirty days (p. 2).

The grounds

The applicant accepted that an application must in principle be made before entry, but argued that he could not have complied: he came to Luxembourg to seek asylum, not to find work, entered lawfully as an asylum seeker, and only later found a job. He also relied on Article 3 of the European Convention on Human Rights (ECHR), setting out at length the threats he said he faced in the Democratic Republic of the Congo because his father had been an adviser to the former President Mobutu. In reply he denied having worked “clandestinely”, since he had been declared to the Joint Social Security Centre (pp. 2–3).

The Tribunal’s reasoning

The Tribunal stated the general principle, which the 2026 judgments repeat almost word for word:

Although the requirement imposed by Article 39 of the Law of 29 August 2008 may seem inappropriate in certain individual cases, given an applicant’s history and in particular his lawful entry into Luxembourg, that article nonetheless reflects the legislature’s intention to lay down the principle that a third-country national who intends to stay in Luxembourg for more than three months must have an authorisation of stay before entering the Grand Duchy, a third-country national already in the territory being able to apply only in certain exceptional cases set out in paragraphs (2) and (3) of that article, the legislature’s concern having been precisely to avoid the Minister being presented with a fait accompli.

For the last point the Tribunal cited the opinion of the Conseil d’État of 20 May 2008 on bill no. 5802 (document 5802/10, p. 15) (p. 4). On 5 April 2018 the applicant was not staying lawfully: since the Cour administrative’s judgment of 27 March 2018 he had been obliged to leave. His argument that he had no possibility of applying before entry therefore failed, since he could have applied from the Congo (p. 4). The Article 3 ECHR ground had already been decided in the asylum proceedings by the Tribunal and the Cour administrative, and the applicant could not reopen a judicial decision that had become res judicata (p. 4).

Neither exception helped him. Article 39(2) applies only to a person “staying lawfully” for up to three months; without an authorisation of stay or a valid visa he was not lawfully resident. Article 39(3) is reserved to the holder of an authorisation of stay of more than three months who applies before it expires (p. 5). Since the application was inadmissible, the Minister did not have to examine whether the conditions of Article 42 were met (p. 6).

Outcome

The action for annulment was admissible but dismissed, and the applicant was ordered to pay the costs (p. 6).

Overstaying a Schengen visa: Tribunal administratif, 23 April 2026, no. 50679

Facts

A Cape Verdean national, acting for herself and her minor son, lodged an application through her then lawyer by letter of 14 December 2022, received on 15 December 2022, for an authorisation of stay under Article 42, or alternatively for humanitarian reasons of exceptional gravity under Article 78 (p. 1). Her mother had acquired Portuguese nationality through marriage and lived in Luxembourg with her husband and their children. The applicant and her son had come to Luxembourg on a short-stay visa; after her mother’s accident she stayed on to look after her, registered with the municipality, and enrolled her son at school (pp. 4–5).

By letters of 28 February 2023 and 3 July 2023 the Minister asked for further documents within one month. On 12 January 2024 the Minister for Home Affairs, in a decision cancelling and replacing one of 4 January 2024, refused on two grounds. The application was incomplete under Article 42(4), since her diploma and the original of the ADEM certificate allowing her employer to recruit a person of its choice were still missing; and it was inadmissible under Article 39(1), since she and her son had been in Luxembourg at least since their declaration of arrival at the municipality and no longer met the conditions of Article 34. They were ordered to leave within thirty days (p. 2). On informal appeal, received on 20 February 2024, the Minister confirmed the refusal on 6 May 2024, again noting the missing original ADEM certificate and the irregular stay, and invited them to apply properly from Cape Verde or another country where they were authorised to stay (p. 3).

The grounds

The applicant argued that the Ministry had twice examined her application, on 28 February and 3 July 2023, without objecting that it had been lodged after her arrival, and that she had supplied all the documents requested except, according to the State, the original of ADEM’s letter of 13 February 2023, whose copy was not disputed. Article 42(4) allows but does not oblige the Minister to reject an incomplete application. Her file was imprecise about the occupation, which she said she had practised for years without needing a diploma. Her family situation, split between two nationalities, was an exceptional case under Article 39(2). The Minister had not decided on her Article 78 request, and the person who signed the decisions could not be identified (pp. 5–6).

The Tribunal’s reasoning

External legality came first. A party who disputes the signatory’s authority must specify how the Grand-Ducal Order of 22 December 2000 on delegation of signature was breached and, where appropriate, check with the Ministry of State; the omission of the delegated signatory’s name is a matter of pure form that does not lead to annulment without a demonstrated prejudice. The applicant had done neither and claimed no prejudice to her rights of defence (pp. 6–7).

On the authorisation of stay as a salaried worker, the Tribunal repeated the Article 39 principle (pp. 7–8). It was not disputed that the applicant and her son were in Luxembourg and staying irregularly when the application was lodged: their type C visa had expired some months before the application was received on 15 December 2022 (the exact dates are redacted in the published judgment). Without needing to examine her arguments on her family’s situation, the documents supplied or the occupation concerned, the Tribunal held that the Minister had rightly declared the application inadmissible: she did not meet Article 39(2), because she had not applied within the statutory three months (p. 8). The fact that the Ministry had earlier asked for documents did not feature in that reasoning.

On the request under Article 78(3), in the wording applicable when the decisions were taken, the Minister has a discretionary power, subject to review for proportionality and for facts established beyond doubt. The provision transposes Article 6(4) of Directive 2008/115/EC and is limited to cases where the facts invoked are such as to infringe fundamental human rights in an extremely serious way (pp. 8–9). Family ties in Luxembourg are, according to settled case law (citing Cour administrative, 13 June 2013, no. 32252C), unrelated to humanitarian reasons, and the degree of integration and schooling of children do not suffice (citing Tribunal administratif, 14 December 2009, no. 25911); it was not alleged that schooling in Cape Verde was impossible (p. 9). The refusal of the humanitarian authorisation was therefore lawful. No ground was raised against the finding of irregular stay or the order to leave, and it is not for the Tribunal to make up for the parties’ failure to develop their grounds (p. 10).

Outcome

The Tribunal declared itself without jurisdiction for the main claim for reformation, dismissed the claim for annulment, rejected a claim for a procedural indemnity of €3,000, and ordered the applicants to pay the costs (p. 10).

Temporary occupation authorisations do not open the door: Tribunal administratif, 22 April 2026, no. 53094

Facts

A Venezuelan national applied for international protection on 21 February 2022 under the Law of 18 December 2015. The application was rejected as unfounded on 28 September 2023, with an order to leave within thirty days, and his appeal was finally dismissed by the Cour administrative on 20 March 2025 (no. 51145C). On 26 March 2025 he was entered in the Schengen Information System for the purpose of a return decision. His application of 2 April 2025 for postponement of removal was refused on 8 April 2025 (pp. 1–2).

On 22 April 2025 he applied for an authorisation of stay for a salaried activity. He had been working for a limited liability company, company (AA), during the asylum procedure, on the basis of temporary occupation authorisations issued on 18 April 2024, 20 September 2024 and 18 February 2025 (pp. 2, 7). On 12 May 2025 the Minister wrote to the company that he no longer held a valid authorisation and that, if he remained employed, it could be sanctioned under Article L. 572 of the Labour Code. The same day the Minister declared the application inadmissible under Articles 38 and 39(1): the applicant had been finally rejected on 20 March 2025, was staying irregularly when he applied, and had not shown that he had left the Schengen area or was authorised to stay in another Member State. The temporary occupation authorisation had expired, under Article 6(6) of the Law of 18 December 2015, on the date of the Cour administrative’s judgment (pp. 2–3).

He registered with the International Organization for Migration for assisted voluntary return, was placed under a one-month residence order at the return facility (maison retour) by order of 30 June 2025, lodged his action on 1 July 2025, and returned voluntarily to Venezuela on 6 August 2025, after which his SIS alert was deleted (p. 3). The Tribunal declared the action admissible without discussing whether his departure had affected his interest in pursuing it (pp. 3–4).

The grounds

The applicant argued that the refusal rested solely on Article 39(1) without questioning that the other conditions were met. When he applied he held a temporary occupation authorisation, which had allowed him to sign a permanent contract with a business that served the economic interests of the country and that had trained him. He could not return to Venezuela, where he had been the victim of a paramilitary group, and requiring him to apply from there breached Article 6 ECHR and Article 47 of the Charter of Fundamental Rights; in reply he added Article 13 ECHR. The Article 42 conditions were met, he said, because he and his employer had completed all the steps needed to obtain several temporary occupation authorisations. He also argued that he should have been granted an authorisation under Article 78(3) and Article 6(4) of Directive 2008/115/EC, relying on reports by Human Rights Watch of 30 April 2025 and Amnesty International on Venezuela (pp. 4–5).

The Tribunal’s reasoning

After restating the standard of review in an action for annulment, including review of proportionality where the authority has a margin of assessment (p. 6), the Tribunal applied the Article 39 principle. The applicant was in Luxembourg and staying irregularly when he applied, and had been since the Cour administrative’s judgment of 20 March 2025 (p. 6). His temporary occupation authorisation of 18 February 2025, though in principle valid until 17 August 2025, had ended on 20 March 2025 (p. 7). If his account of the risks on return was meant as an argument that return would be an “unjust burden” under Article 39(2), it failed: he had stayed for more than three months and had not applied within the three-month period, and the conditions of paragraph 2 “are cumulative and not alternative” (p. 7).

The fundamental rights arguments failed too. Article 6 ECHR did not apply, since the decision concerned neither civil rights nor a criminal charge, and the applicant had in any event been able to bring an action and defend his case; the same applied to Article 47 of the Charter (p. 7). Neither provision applies to the purely administrative stage of the procedure (p. 8). The Article 13 ECHR ground had not been developed and failed because he had had an effective remedy (p. 8).

The arguments that the Article 42 conditions were met were irrelevant, since the refusal was based on Article 39(1), not Article 42. The Tribunal added, for completeness, that according to explanations the State had not effectively challenged, company (AA) had not obtained the ADEM certificate required by Article L. 622-4 of the Labour Code, so the conditions of Article 42 were not met in any event (pp. 8–9).

On Article 78(3), the application had sought only an authorisation for a salaried activity and the Minister had taken no decision on any humanitarian authorisation. The applicant had asked for “any other more favourable provision suited to [his] personal situation”, and under Article 3 of the Grand-Ducal Regulation of 8 June 1979 an administrative authority must apply the applicable law of its own motion and give the person concerned the benefit of the most favourable rule. But the application, made with a lawyer’s assistance, mentioned nothing that could point to humanitarian reasons of exceptional gravity. An annulment court reviews the decision on the file the Minister had, and the Minister could not be criticised for not considering grounds raised for the first time in the action (p. 9).

Outcome

The action for annulment was admissible but dismissed, and the applicant was ordered to pay the costs (p. 10).

How the decisions fit together

The ADEM certificate defines the required qualifications

The 2018 and 2020 judgments give Article 42(1), point 3, a concrete content. The statute does not say which qualifications are required, so the Tribunal takes them from the profile the employer itself declared to ADEM under Article L. 622-4(2) of the Labour Code and that ADEM used to search the labour market. The applicant is measured against that profile, not against a general idea of competence. Three consequences follow from the two judgments.

First, the requirements are cumulative: in the 2020 case, the missing diploma was decisive and the Tribunal did not look at the experience requirement at all. Second, experience or similar training does not replace a diploma the employer required. Where the employer asked for a Luxembourg-level diploma such as the DAP, the Ministry of Education’s refusal of equivalence was decisive in the 2018 case; that refusal was “a priori not challenged”, so the judgment leaves open what would happen if it were. Third, the qualifications must exist when the Minister decides, so a promise of training after hiring does not count.

The 2020 judgment explains why the Tribunal insists on this. The ADEM certificate is issued only because no registered jobseeker met the declared profile. If a worker who does not meet the profile could be hired under it, the labour market test would have been carried out on a different, more demanding job than the one actually filled. An employer that is ready to accept less must declare the post again, so that ADEM can check whether a registered jobseeker meets the lower profile.

Economic interests: what the Minister looks at

Point 2 is the vaguest of the four conditions. The 2019 order relies on two earlier decisions, as cited there, that give it some content: an employer’s wish to hire is not enough, and the condition is met where there is a proven shortage of labour in the field matching the applicant’s training. The ministerial decisions in the 2019 and 2026 cases show the factors used in practice: low-skilled work with no competitive know-how, the absence of evidence of lasting integration in the labour market, suitable jobseekers proposed by ADEM and rejected without valid reason, and the employer’s debts to social security. The 2015 refusal recounted in the 2018 judgment, based on the fixed-term character of the job, is a further example. None of these reasons was reviewed by the Tribunal on the merits in the decisions reviewed here: the 2019 order rejected interim relief at the provisional stage, and the 2026 judgment ended on loss of interest. There is therefore no full judgment in this set on how the Tribunal reviews the Minister’s assessment under point 2.

The 2019 order also shows the risk for employers of using the ADEM procedure loosely. A certificate is valid for the post under the specific offer. Using it for several workers, or adjusting vacancy declarations to match workers already employed irregularly, led the president to speak openly of a suspicion of fraud.

Article 39: inadmissibility comes first

The three in-country cases show that Article 39(1) operates as a threshold. Where the application is lodged from inside Luxembourg and neither exception applies, it is inadmissible and the Minister need not examine Article 42 at all (2019), arguments that the Article 42 conditions are met are irrelevant (the April 2026 Venezuelan case), and the Tribunal can decide without considering family circumstances or the documents supplied (the April 2026 Cape Verdean case). The Tribunal accepts that the rule may seem inappropriate in some cases but treats it as the legislature’s deliberate choice to avoid a fait accompli.

The exceptions are read narrowly. Article 39(2) requires a lawful stay of up to three months, an application within that period, proof that all conditions of the category are met and an unjust burden in returning; these conditions are cumulative. A rejected asylum seeker is not staying lawfully once the final judgment is given, and a visitor who stays on after a short-stay visa expires is outside the three months. Article 39(3) helps only the holder of an authorisation of stay of more than three months who applies before it expires. In the 2026 Venezuelan case the applicant’s temporary occupation authorisation had ended automatically with the final asylum judgment, months before its stated expiry date, so that he held no valid authorisation when he applied. Fundamental rights arguments based on Articles 6 and 13 ECHR and Article 47 of the Charter did not change the analysis, and an Article 3 ECHR argument already decided in the asylum proceedings could not be raised again.

Incomplete files

Two cases also turned partly on Article 42(4). In the 2019 order the first refusal was for an unanswered request for documents; in the April 2026 Cape Verdean case the Minister relied on the missing diploma and the missing original of the ADEM certificate, alongside inadmissibility. In neither case did the Tribunal rule on how far the Minister’s power to reject an incomplete file extends, since in 2019 the applicants did not address it and in 2026 the Article 39 ground was enough.

Humanitarian authorisation as a fallback

Both April 2026 judgments touch on Article 78(3), which our current text of Article 39(1) excludes from the rule against in-country applications. The Tribunal treats it as a separate request that must actually be made and supported before the Minister. Where it was made, family ties and a child’s schooling were held not to amount to humanitarian reasons of exceptional gravity; where only a salaried worker authorisation was requested, the Minister had nothing to decide and could not be criticised for grounds first raised in court.

What it means in practice

The decisions point to a sequence that employers and their advisers can check before a file is lodged. They are not advice on any particular case.

• Write the ADEM vacancy profile with care. The profile declared under Article L. 622-4 of the Labour Code becomes the yardstick for Article 42(1), point 3. Every diploma, language and years-of-experience requirement in it must be met by the worker, cumulatively, on the day the Minister decides.
• If the candidate does not meet the profile, declare the post again. The 2020 judgment says so in terms. A lower profile means a new three-week search by ADEM; in the 2020 case, an application of April 2018 ended with a dismissed action in July 2020.
• Use one certificate for one post. The certificate covers the post under a specific offer. Reusing it for several workers, or rewriting profiles to fit staff already working without authorisation, invites a finding of fraud.
• Prove diplomas and their recognition. Where the profile requires a Luxembourg-level qualification such as the DAP, check equivalence with the Ministry of Education before applying. Short training certificates, continuing education and distance learning were not accepted in place of the required diploma.
• Be ready to explain economic interest. The Minister looks at whether the job meets a real shortage, whether ADEM proposed candidates and why they were rejected, the skill level of the work, the likely lasting integration of the worker, and the employer’s standing, including social security debts. Keep a record of the reasons for rejecting any candidate ADEM proposes.
• Apply from abroad. The application must be lodged and approved before entry. A worker already in Luxembourg on a short-stay visa can apply from inside only in exceptional cases, within the three-month period, and with proof of all conditions and an unjust burden in returning. A worker whose asylum claim has been finally rejected, or whose visa has expired, cannot.
• Do not rely on a temporary occupation authorisation. It ends with the final asylum decision, and work under it does not convert into a right to a salaried worker authorisation from inside the country. The employer may be warned of sanctions under Article L. 572 of the Labour Code if employment continues.
• Answer requests for documents in time and send originals where asked. Article 42(4) allows the Minister to reject an incomplete file, and in the April 2026 Cape Verdean case the Minister relied on the missing original of the ADEM certificate although, according to the applicant, the copy was not in dispute.
• Keep the case alive. In the February 2026 case the action failed because, after the lawyer withdrew, the applicant gave no sign of interest. An action against a refusal does not suspend an order to leave, as the 2018 confirmatory decision in the 2019 case pointed out.
• Remember what follows the authorisation. The salaried worker residence permit is valid for up to one year (Article 43(1)) and limits the holder to one sector and one occupation in the first year (Article 43(2)); a change during that year is authorised after a fresh check of the Article 42(1) conditions (Article 43(3)).

For the Dutch equivalent, built on employer recognition and salary thresholds rather than a vacancy test, see our review of recognised sponsors and highly skilled migrants in the Netherlands.

Status

No appeal judgment against any of the seven decisions is among the sources for this review. The judgment on the merits in the 2019 interim case (no. 42233) is also not among the sources, so the outcome of that action is not known from them.

Article 42 has not been amended since 8 March 2017, and its text in the judgments matches our current translation. Article 39 was amended by the Law of 4 June 2024, after the ministerial decisions in the 2019 case and in the April 2026 Cape Verdean case and before the decision in the April 2026 Venezuelan case; the Tribunal’s quotations of paragraph 1 leave out the exceptions, so the judgments do not show what changed. Article 38-1, on the work permit requirement, was inserted by the Law of 7 August 2023. The article of the Grand-Ducal Regulation of 5 September 2008 that lists the supporting documents is quoted in two different versions in the 2018 and 2020 judgments; the 2018 judgment quotes the version in force in July 2017, and the 2020 judgment does not date the version it quotes. Article 78(3) was applied in the April 2026 Cape Verdean case in its wording at the time of the decisions; it is outside our translation, and we cannot say from the sources whether it has changed since.

Provisions discussed

• Immigration Law: Art. 38, Art. 39, Art. 42

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How to cite

Case law review by BCA EU, for information. Quotations from the judgments are our translations; only the original texts published by the courts are authoritative. Judgments checked on the official sources on 30 October 2026. This page is not legal or tax advice.