NLI with further clarification on the correct application of the Consolidation Act on Immigration.
With note no. 12233 of 27 November 2020, NLI recently responded to the request for further clarification on the correct application of Article 27 quinquies of Legislative Decree no. 286/1998 of the Consolidation Act on Immigration, which regulates the entry and stay in Italy of workers from third countries.
First of all, it should be specified that an intra-corporate transfer is defined as the temporary posting of a worker (manager, specialised worker or worker undergoing training) from a company established in a third country to the host entity:
- Branch/representation located in Italy of the company on which the transferred worker depends.
- Company belonging to the same group of companies, provided that there has been an employment relationship with the posting company for at least three consecutive months.
With the recent note, INL has made the following clarifications:
- Art. 27 imposes a series of conditions on the host entity, including the commitment to fulfil the social security and welfare obligations provided for by Italian law and it will therefore be on the host entity that any checks on its economic suitability will be carried out. Where the host entity is a branch of a foreign parent company, it will be possible to assess in overall terms the economic capacity of both parties, so that the parent company can cover any economic deficit of the branch.
- However, the investigation of the economic adequacy of the host entity remains necessary. The survey, in fact, is aimed to exclude that the host entity was established mainly for the purpose of facilitating the entry of workforce or that it does not carry out any economic activity.
- Following the above-mentioned verifications, as also indicated in Circular No. 517 of 9 February 2017, the possibility of refusal or withdrawal of authorisation is not excluded.