A snapshot of the changes in global mobility and immigration from around the world over the past two months. Contributor Localised legal practitioners in the international Ius Laboris law group.
Controversial adjustment of the family allowance for Austrian employees/nationals with children living in another EU or EEA country or in Switzerland, entered into force on 1 January 2019
For children living in another EU or EEA country or in Switzerland, the amount of the family allowance and the child deduction has been adjusted to the price level of the country in which the child lives, using the Austrian benefit level as the reference value. For children living in countries with a lower cost of living, this may lead to a significant reduction.
The adjustment has been subject to criticism by several EU member states. The EU Commission is considering whether to open infringement proceedings about it against Austria.
Birgit Vogt-Majarek, partner at Schima Mayer Starlinger Rechtsanwälte GmbH
Stefan Burischek, associate at Schima Mayer Starlinger Rechtsanwälte GmbH
Single Permit and new immigration rules
Belgium has finally transposed the EU ‘Single Permit’ Directive (2011/98/EU). The federal Act approving the Cooperation Agreement was published on 24 December 2018 and the Single Permit has entered into force. From now on, a new single application procedure for obtaining a single permit to work and reside in Belgium for a period longer than 90 days will be used throughout Belgium. Even so, it may take up to 4.5 months for the application process to be completed so employers will need to align their internal processes and timelines accordingly.
Further, work permit C (previously granted to some individuals who had a right to reside in Belgium for reasons other than work, such as students and asylum seekers after four months) has been abolished and replaced by a note on the employee’s residence permit.
Besides these new Belgium-wide rules, the conditions for employing foreign employees in Flanders have also been significantly reformed in 2019. The Flemish Region introduced a new economic migration model based on three separate profiles: highly qualified and special profiles, certain medium-skilled profiles (only for professions listed in a shortage list updated twice a year) and profiles in a residual category subject to a labour market test and for whom ‘special economic and social reasons’ must be established. These new rules only apply in Flanders and not in Brussels or Wallonia.
Limosa declaration for foreign self-employed workers: only for sectors involving risk as of 2019
As of 1 January 2019, the mandatory ‘Limosa declaration’ for self-employed workers who work temporarily in Belgium no longer applies to all sectors but is limited to the following risk sectors: construction activities, activities in the meat industry and cleaning activities.
Sophie Maes, partner at Claeys & Engels
Online International Police Department appointment facility
The International Police Department (also known as ‘PDI’) has put in place an online appointment system for:
- visas/permanent residence registration;
- travel certificates;
- permanent residence validity;
- copies of visa/permanent residence registration certificates.
People can now request an appointment with an official of the PDI online.
This should make these procedures more user-friendly, as there should no longer be queues and long waits at the PDI.
Marcela Salazar Flores, partner at Munita & Olavarría
Extension of Special Stay Permit applications for Venezuelan nationals
Pursuant to Resolution 10677 published on 18 December 2018, the application deadline for Special Stay Permits (Permiso Especial de Permanencia, ‘PEP’) for Venezuelan nationals’, has been extended by four months from the date of publishing, to those individuals who had entered Colombia by 17 December 2018.
To be eligible for this permit, individuals must comply with the following requirements:
- be in Colombia by 17 December 2018;
- have entered through an immigration control port;
- have clean police records at national and international level;
- have no valid expulsion or deportation orders against them.
The Special Stay Permit is a document granted to Venezuelan nationals who comply with certain requirements and intend to remain in Colombia temporarily. It allows the holder to work in Colombia, join the social security system and open a bank account.
Catalina Santos, partner at Brigard Urrutia;
Diana Monsalve, associate at Brigard Urrutia.
Amendments to the specialist tax regime for individuals who have not been subject to Danish tax for a minimum of 10 years
The Danish specialist tax regime has been amended with effect from 1 January 2019. The regime provides for a flat tax rate of 27% for up to seven years. When taking into account the effect of the Danish labour market tax of 8%, the effective tax rate is 32.84%.
The amendments involve changing inconvenient technicalities to make the regime more flexible. In broad outline, the amendments mean that:
- the tax regime can now apply to employees seconded to a branch of a company operating in Denmark – not only to a Danish subsidiary;
- the requirement for an employment contract between the Danish employer and the employee is eased, for example so that a secondment agreement between the foreign employer and employee may be sufficient;
- employees on childbirth-related leave during their stay in Denmark do not risk losing their eligibility under the specialist tax regime; and
- employees who plan to return to Denmark for work (and to re-join the specialist tax regime) do not risk losing their eligibility because, for example, they have received a bonus payment whilst not in Denmark.
Torben Mølgaard Hededal, partner at Norrbom Vinding
Business trips to Germany are visa-free for citizens of privileged states
Citizens of ‘privileged states’ do not require a visa to enter and stay in Germany for business trips of up to 90 days within a period of 180 days. Business trips may, for example, encompass meetings or negotiations in Germany for an employer domiciled abroad.
If the activity is not a business trip, but employment in Germany, and/or the foreign national is not a citizen of a privileged state, a visa or residence/work permit is required.
The privileged states are currently: Albania, Andorra, Antigua and Barbuda, Argentina, Australia, The Bahamas, Barbados, Bosnia-Herzegovina, Brazil, Brunei Darussalam, Chile, Costa Rica, Dominica, El Salvador, Georgia, Grenada, Guatemala, Hong Kong, Honduras, Israel, Japan, Canada, Kiribati, Colombia, the Republic of Korea, Macau, Malaysia, Marshall Islands, Mauritius, Macedonia, Mexico, Micronesia, Moldavia, Monaco, Montenegro, New Zealand, Nicaragua, Palau, Panama, Paraguay, Peru, Solomon Islands, Samoa, San Marino, Serbia, Seychelles, Singapore, St. Kitts and Nevis, St Lucia, St Vincent and Grenadines, Taiwan, East Timor, Tonga, Trinidad and Tobago, Tuvalu, Ukraine, Uruguay, Vanuatu,
Venezuela, United Arab Emirates and the USA. Please note, however, that individual restrictions may apply.
Julia Uznanski, associate at KLIEMT.HR Lawyers
Changes to documentation and conditions for intra-corporate transfers and for certain visas and residence permits
New law, L. 4540/2018, has just come into force, supplemented the provisions of law L. 4251/2014. These laws are aimed at harmonising Greek law with EU Directive 2014/66. The purpose of the Directive is to make it easier for companies to post employees within Europe and to reduce bureaucracy in several member states.
The new Greek law covers third-country nationals (non-EU) who apply to enter a Member State under an intra-corporate transfer as managers, specialists or trainees. The law sets out what documents are required for short-term and long-term placements, the grounds for rejection and withdrawal of the application, how long an intra-corporate transfer can last and how long the permit will be valid for.
A Joint Presidential Decision (31399/18), published on 18 September 2018, redefines what documents are needed for national visas and residence permits. For example, four recent colour photographs are now needed instead of two and these must conform to certain specifications. A fee of EUR 16 is required to have documents printed.
The requirements for residence permits for third-country nationals on grounds of family reunification have been simplified. However, a recent, officially certified and translated certificate of family status by the authorities of the country concerned, is compulsory for any initial residence permit.
If an initial residence permit is requested by a family member of a Greek citizen (e.g. this could be a husband or wife or unmarried partner) two more documents can be submitted within three months at the applicant’s discretion, for example, a certificate proving that the spouse has sought international protection, or a residence permit from another Member State.
Ioannis Koimtzoglou, partner at Kremalis Law Firm
Introduction of Construction and Infrastructure Skill Shortage List and commencement of consultation regarding employer-assisted work visa framework
On 17 December 2018, Immigration New Zealand introduced a Construction and Infrastructure Skill Shortage List, which identifies occupations with labour shortages (including Civil, Structural, Electrical and Telecommunications Engineers, Carpenters, and Roading and Infrastructure Construction Project Managers/Foremen) and simplifies the visa application process for applicants wishing to enter New Zealand to work in those occupations.
On 18 December 2018, the Government commenced public consultation about proposed changes to the framework for employer-assisted temporary work visas (including Essential Skills, Talent (Accredited Employer) and Long Term Skill Shortage List categories). The proposals aim to provide incentives for businesses to employ New Zealanders while ensuring improved availability of migrant labour in sectors and regions with genuine needs. The Government is proposing a single enhanced pathway for employer-assisted temporary work visas.
Consultation closes on 18 March 2019.
Simon Lapthorne, executive partner at Kiely Thompson Caisley;
Hannah King, senior solicitor at Kiely Thompson Caisley
New subtype of residence permit will make it easier to employ foreign nationals in high-end jobs
Starting on 1 January 2019, a new subtype of temporary residence and work permit was introduced, allowing work in professions ‘desired for the Polish economy’. The Ministry of Work will provide a list of those professions.
Obtaining the new permit will be easier than before, as the employer will not be required to prove inability to satisfy its staffing needs on the local labour market. It will also give foreign nationals faster access to a permanent residence permit.
Tomasz Rogala, senior associate at Raczkowski Paruch sp. k.;
Marcin Sanetra, trainee lawyer at Raczkowski Paruch sp. k.
On 1 January 2019, the Tech Visa programme came into force.
This aims to certify tech companies for the employment of foreign nationals who wish to develop a highly skilled activity in Portugal. These companies should develop their activity in the technological and innovation areas and the certification is valid for two years.
Bruno Barbosa, partner at pbbr
Key developments in Russian migration law
The new migration registration requirements for foreign nationals came into effect on 8 July 2018. Under these, foreign nationals cannot be registered at the address of their employing company, unless they actually live there.
The new version of the law does not allow employers to register foreign employees and their families at company addresses. Now only the proprietors of the place of residence of foreign employees can register them.
Starting from 23 November 2018, a law dealing with criminal liability for sham immigration registration of foreign citizens and stateless persons, came into force. For example, the following cases are considered sham:
- for a foreign national or stateless person to register a place of residence with no intention of living there and with the host having no intention to make the place available to them;
- registration at a company address, if the foreign national/stateless person does not in fact work there.
The criminal penalties for these could be a fine of up to RUB 500,000; a fine of up to three years’ salary; community service for up to three years with suspension of the right to hold certain positions or perform certain activities for up to three years; or imprisonment for up to three years with suspension of the right to hold certain positions or perform certain activities for up to three years.
New obligations for writing letters of invitation to assist a foreign national in getting a visa came into force on 16 January 2019. Now, the inviting party must ensure the timely departure from Russia of the person they invited upon expiry of their visa. The inviting party must also ensure the invitee complies with the declared purpose of their stay in Russia (e.g. a person entering Russia on a business visa cannot be involved in employment activities in Russia).
For any breach, inviting parties may be subject to an administrative fine, as follows:
- for individuals — from RUB 2,000 to 4,000;
- for officials of legal entities (e.g. the General Director) — from RUB 45,000 to 50,000;
- for legal entities themselves — from RUB 450,000 to 500,000.
Irina Anyukhina, partner at ALRUD Law Firm
Changes to facilitate the employment of foreign nationals
An amendment to the Act on the Stay of Foreign Nationals, effective as of 1 January 2019, is aimed at making the employment environment in Slovakia more attractive to professions in which there is a labour shortage.
It shortens the deadline for assessing applications for permits for seasonal employment and makes it easier to use temporary employment agencies – but only where there is a shortage of labour.
The list of the affected professions will be regularly updated and published on the Central Labour Office´s website to reflect market needs.
Dajana Csongrádyová, associate at NITSCHNEIDER & PARTNERS
Settled Status System to open early on 21 January
The Settled Status System which has been designed to document all EEA nationals and their Family Members in the UK, was scheduled to open on 29 March 2019. It will now be open to anyone who possesses a modern chip passport, from 21 January 2019. It will be open to all applicants from 29 March 2019.
Naomi Hanrahan-Soar, managing associate at Lewis Silkin LLP
United Kingdom: UK government releases plans for post-Brexit immigration system
The government’s ‘white paper’ on the post-Brexit immigration system was published on 21 December 2018 and will be followed by a year of stakeholder engagement before new Immigration Rules are laid.
The paper proposes not to give preference to EEA/Swiss citizens, unless this is negotiated in trade deals. Instead, some of the existing restrictions in the skilled work category will be relaxed, including removing the annual limit and resident labour market test, and dropping the minimum skill level to ‘A-level’ (i.e. high school) equivalent. A review of the shortage occupation list is also planned.
For a transitional period, it is envisaged that low-skilled migrants will be able to come to the UK on an unsponsored basis for up to 12 months, with a 12-month cooling-off period. There are also plans to expand the scope of the youth mobility scheme to include a reciprocal EU-UK scheme.
Andrew Osborne, partner at Lewis Silkin LLP
THIS UPDATE PROVIDES SUMMARY INFORMATION AND COMMENT ON THE SUBJECT AREAS COVERED. EMPLOYMENT LAW IS SUBJECT TO CONSTANT CHANGE EITHER BY STATUTE OR BY INTERPRETATION BY THE COURTS. WHILE EVERY CARE HAS BEEN TAKEN IN COMPILING THIS INFORMATION, WE CANNOT BE HELD RESPONSIBLE FOR ANY ERRORS OR OMISSIONS. SPECIALIST LEGAL ADVICE MUST BE TAKEN ON ANY LEGAL ISSUES THAT MAY ARISE BEFORE EMBARKING UPON ANY FORMAL COURSE OF ACTION.