ABIL - Home 404.949.8150 ABIL Contact Us
Alliance of Business Immigration Lawyers About Services Industries We Serve ABIL Lawyers Global Immigration News and Articles Resources
ABIL
 
   Back to Newsletters Download Newsletter   

 
1. BELGIUM - Belgium maintains restrictions on Croatians for two years following Croatia's joining the European Union; the LIMOSA update takes effect; permanent residence for EU citizens and family members now takes five instead of three years; and the Belgian government has approved draft legislation on new/updated work permit exemptions.
2. CANADA - The Québec Investor Program will reopen from August 1 to August 16, 2013.
3. CHINA - New administrative rules for foreign nationals entering China will take effect in September. The new rules make significant changes.
4. FRANCE - Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.
5. ITALY - Croatian nationals wishing to work in Italy are subject to some restrictions, but Italy has lifted restrictions for certain categories of Croatian workers.
6. SOUTH AFRICA - A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.
7. UNITED KINGDOM - Various new developments have been announced.
8. Member News - Member News
 

 
 
1. BELGIUM
 

Belgium maintains restrictions on Croatians for two years following Croatia's joining the European Union; the LIMOSA update takes effect; permanent residence for EU citizens and family members now takes five instead of three years; and the Belgian government has approved draft legislation on new/updated work permit exemptions.

Croatia Joins the European Union; Belgium Maintains Restrictions for Two Years

Croatia joined the European Union (EU) on July 1, 2013.

In principle, all EU nationals can benefit from a work permit exemption in Belgium on the basis of the freedom of movement of workers. However, the Member States can maintain restrictions on the right of free movement of workers for citizens of "new" Member States during a transition term.

By means of a Royal Decree, dated June 24, 2013, and effective July 1, 2013, the Belgian government is maintaining such restrictions on Croatian nationals for two years, until June 30, 2015. This implies that the EU citizenship work permit exemption does not apply: in general, Croatian nationals must obtain a work permit to work legally in Belgium. However, they may have easier access to some labor-shortage professions.

The same restrictions are still in place for Bulgarian and Romanian citizens until December 31, 2013.

LIMOSA Update Takes Effect

The European Court of Justice (ECJ) ruled on December 19, 2012, that the Belgian LIMOSA system (prior declaration requirement for a foreign national seconded to Belgium) discriminates against self-employed service providers who want to supply services in Belgium on a temporary basis. The court ruled that "formalities implied by the declaration requirement at issue" were a disproportionate obstacle to the freedom to provide services.

To comply with the ECJ's judgment, the LIMOSA requirement for self-employed individuals was suspended until June 30, 2013. As of July 1, 2013, new rules apply pursuant to a Royal Decree issued on March 19, 2013. The new rules apply both to the self-employed and to employees and trainees:

  • The list of data required for the LIMOSA is modified slightly. Some information is no longer required (for example, the weekly working time for employees). The LIMOSA declaration now requires specifying whether the seconded employee, self-employed person, or trainee will be active in "construction work" in Belgium;
  • In the event of most cases of structural employment in several countries, including Belgium, a "simplified" LIMOSA that required less information and that extended up to 12 months (renewable) could be made before July 1, 2013. As of that date, a LIMOSA for most cases of structural employment in several countries, including Belgium, that can extend up to 12 months (renewable) still exists but now requires the same data as a "regular" LIMOSA;
  • A LIMOSA must be cancelled as soon as possible, and no longer than by the end of the first day of the indicated time frame, if the secondment does not take place within the indicated time frame.

It is unclear whether these measures will suffice to comply with the ECJ judgment. A draft bill was filed with the Belgian Chamber of Representatives on July 16, 2013, under which the LIMOSA declaration would no longer be required for seconded trainees. This act is scheduled to take effect retroactively on July 1, 2013.

Permanent Residence for EU Citizens and Family Members Now Requires Five (Instead of Three) Years

Under article 16 of Directive 2004/38/EC on the right of citizens of the EU and their family members to move and reside freely within the territory of the Member States, a right to permanent residence may be granted to citizens of the Union and most family members after legal residence for a continuous period of five years in the host Member State.

When implementing Directive 2004/38/EC in 2007, Belgium allowed a right to permanent residence after legal residence for a continuous period of three years in Belgium.

By means of an Act, dated June 28, 2013, and effective July 11, 2013, the required residence term has been extended to five years.

Future Legislation: New/Updated Work Permit Exemptions

The Belgian government approved a Royal Decree on July 17, 2013, modifying some work permit exemptions. The decree was published in the Belgian State Gazette on July 26, 2013, and took effect August 5, 2013.

The main changes include:

  • The work permit exemption for dependents of Belgian or EU/EEA (European Economic Area) citizens has been clarified. Previously, this exemption for dependents was linked to a family relationship to the Belgian or EU/EEA national. Under the new rules, the exemption for the dependent is directly linked to the residence document, issued to the dependent. The idea behind this change is that such direct link to the residence document will make it easier to verify whether an exemption applies. 
  • The same change applies to the family reunification work permit exemption for Bulgarian, Romanian, and Croatian citizens. The new rules refer to residence documents.
Previously, only students in Belgium could invoke a work permit exemption for a mandatory traineeship in Belgium. Under the new rules, students who study in the EEA or Switzerland and who come to Belgium for a mandatory traineeship may use this work permit exemption.
 
Back to Top

 
2. CANADA
 

The Québec Investor Program will reopen from August 1 to August 16, 2013.

Québec Investor Program to Reopen on August 1, 2013

The Québec Ministry of Immigration and Cultural Communities (MICC) announced on July 8, 2013, that the Québec Investor Program will reopen from August 1 to August 16, 2013. The Québec Investor Program has been closed to new applications since April 12, 2012, when the limit of 2,700 applications was reached 12 days after the program was reopened under a Demand Management System to restrict the applications to numerical limits (quotas).

The reopening of the Québec Investor Program forms part of the new rules for issuing Québec Selection Certificates, which are required for permanent immigration to Québec. The new rules were published in the Québec Gazette on July 17, 2013, and will govern the processing of applications from August 1, 2013, to March 31, 2014.

According to the new rules, up to 1,750 applications for Québec Selection Certificates will be accepted under the Québec Investor Program, with a maximum of 1,200 applications per country. However, Investor Program applicants with an advanced intermediate level of French language skill, as evidenced by a standardized French test recognized by the Québec MICC, will be exempt from these quotas and can apply at any time.

The eligibility criteria for the Québec Investor Program remain the same. The applicant must possess net assets of at least CAN $1.6 million legally acquired, which cannot include donations received less than six months before the application is filed. The applicant must intend to settle in Québec and sign an agreement to invest CAN $800,000 at a 0% interest rate for a period of five years with a government-approved financial intermediary, which may offer financing. The Québec government guarantees repayment of the CAN $800,000 at the end of the five years. In addition, the applicant must have at least two years of management experience in the past five years working at a legal business with at least two full-time staff members excluding the investor, or at an international agency or government agency.

Applications must be submitted by regular mail. A random drawing will be held to determine the processing priority, and each applicant can only submit one application. Applications that demonstrate an advanced intermediate level of French language skill will not be subject to this drawing. The fee to apply under the Investor Program increased to CAN $10,000 on August 1, 2013.

 
Back to Top

 
3. CHINA
 

New administrative rules for foreign nationals entering China will take effect in September. The new rules make significant changes.

The People's Republic of China Administrative Rules for Foreign Nationals' Exit-Entry were passed by the Standing Committee of the State Counsel on July 3, 2013, and are set to take effect on September 1, 2013. This is the highest level administrative rulemaking that has occurred in response to China's new Exit-Entry laws that took effect on July 1, 2013. While the Administrative Rules do not answer all the questions that practitioners have regarding China's new immigration system, they make significant changes.

Under the new rules, ordinary visas are divided into 12 classifications—significantly more than the current 8 visa categories. The first new category is the M visa for persons who enter China for business or commercial activities. The new rules split the traditional F visitor visa category into the new F visa for persons engaging in exchanges, visits, and exploration/inspections, and the new M visa for commercial business visitors. The administrative rules do not clearly differentiate the two categories. A previous draft of the administrative rules stated that F visas would be issued to persons going to China for non-commercial visits in the fields of science, education, culture, health, and sports. However, the elimination of this language from the final rules blurs the line between these two visa categories, and implies that F visas may apply to certain business visitors. Although sponsorship is not needed for F or M visas, an invitation letter from China is required for F visa applicants, and an invitation letter from a business partner in China is required for M visa applicants.

The second new category is the R visa for foreigners with high-level talent and specialized talent who are urgently needed in China. The new Exit-Entry law and administrative rules do not define "high-level talents or urgently needed professionals." Instead, the administrative rules refer to "relevant government agencies" to provide the conditions and eligibility requirements for this visa category. More detailed rulemaking is expected to clarify the relevant definitions, visa specifications, application procedures, and possibly beneficial treatments for R visa holders.

The new administrative rules also split the traditional L visa for visitors into three categories: (1) a new L visa for tourists only; (2) a Q visa for Chinese nationals' or Chinese lawful permanent residents' family members who enter China to visit family; and (3) an S visa for family members of foreign nationals residing in China for work or study who are entering China to visit family, as well as other foreign nationals who enter China for other personal reasons. The S visa and Q visa essentially replace the former family visit L visa as well as various dependent visas. These two categories are further divided into the S1 and Q1 visa for long-term visits of over 180 days, and the S2 and Q2 visa for short-term visits of 180 days or fewer.

While visa applicants have generally enjoyed interview-free visa applications, the new administrative rules specify that under the following circumstances, foreign nationals should attend an in-person interview according to the Chinese consulate's request: (1) if the applicant will stay for more than 180 days upon entry; (2) if the applicant's personal identification information and the purpose of entry needs to be verified; (3) if the applicant has previously been rejected entry or has been given voluntary departure; or (4) if there are other circumstances making an interview necessary. The first condition applies to foreign nationals applying for J1 long-term journalist visas, Q1 long-term family visit visas, R talent visas, S1 long-term family visit visas, X1 long-term student visas, or Z work visas.

The new administrative rules require Chinese local public security authorities to process and adjudicate visa extensions, replacements, and change-of-status applications within 7 days and to process and adjudicate resident permit applications, extensions, and replacements within 15 days. The authorities must issue a receipt notice, which can be used by foreign nationals as their stay authorization document in cases where the foreign nationals' passport or travel document has been retained by the authorities for visa processing. The receipt notice is valid for up to 7 days for visa-related applications, and up to 15 days for resident permit-related applications. Various cities in China have already adopted this practice.

 
Back to Top

 
4. FRANCE
 

Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.

Same-Sex Marriage Rights Conferred Under French Immigration Procedures

The Act of May 17, 2013, modifies section 143 of the Civil Code to read: "Marriage is contracted by two persons of opposite sex or the same sex." France thus joins the growing list of countries that have legalized marriage between persons of the same sex, including Belgium, Spain, Canada, the Netherlands, Sweden, New Zealand, South Africa, Mexico (Federal District), Argentina, Norway, Denmark, Portugal, Iceland, and Uruguay, along with some states in the United States and Brazil. The new law means that in France, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses.

  • General Provisions; Conflict of Laws In Other Countries; Consular Marriage

Article 202-1 of the Civil Code provides that the conditions for marriage are governed by family law, but article 202-2 provides that two persons of the same sex can marry when the family law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the family law of one spouse prohibiting marriage between persons of the same sex when the marriage took place on the territory of a state recognizing marriage between persons of the same sex.

The above implies that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals may find themselves in situations where their marriages in France are not recognized by their countries of origin.

A consular marriage (registered at the French consulate) between same-sex French nationals would not raise an issue. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in countries that prohibit same-sex marriage. In such case, the Civil Code provides that marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples, validly celebrated abroad at a time when the French law forbade it, may be recognized retroactively.

  • Impact on French Immigration Rights of Foreign Nationals Moving to France

Derivative residence and worker rights known as "accompanying family rights" will apply to married foreign workers under Intra-Company Transfer, EU Blue Card, and Skills and Talents status, regardless of the sexual identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA (code de l'entrée et du séjour des étrangers et du droit d'asile).

A same-sex marriage between a foreign national and a French national will allow the issuance of a visa and a residence permit to the foreign national as the spouse of a French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.

The marriage between a third-country national in the European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121-5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay may be considered as disproportionate interference with the rights to private and family life, under Article 8 of the European Convention on Human Rights.

Biometrics Deployed

The deployment of biometrics in all French departments (département, or administrative area) has led to modifications in procedures for applying for a residence permit and requires an additional appearance at the Prefecture for fingerprinting. This change also will affect the beneficiaries of one-stop Office Français de l'Immigration et de l'Intégration (OFII) processing (e.g., Intra-Company Transferees, EU Blue Cards, Skills and Talents) by the end of the year.

  • Gradual Deployment of Biometrics and Modifications in Residence Permit Application Process

A regulation of the Council of the European Union (EC), No. 380/2008 of April 18, 2008, mandates a new format for biometric residence permits comprising an electronic component into which are inserted a photograph and two fingerprint images. Under this regulation, the Ministry of Interior issued two circulars in April 2011 and June 2012, describing the details on implementing the new residence permit requirement and the progressive deployment of biometrics, which is now effective in several departments.

After a first stage completed in 2011 with the release of the new uniform format for residence permits, the second step will be to collect and insert fingerprints of foreign nationals collected by the Prefecture into the integrated residence electronic component of the permit.

The fingerprinting will require modifications of the procedures for applying for a residence permit. Any person requesting a residence permit (first application or renewal) will be required to go in person to the Prefecture for fingerprinting, as noted above. A deposit at City Hall will no longer be possible and procedures by mail will be affected.

Fingerprints will be valid for five years.

  • Impact on Categories of Foreigners Benefiting From the One-Stop OFII Process
    To date, the three categories of foreigners benefiting from the one-stop OFII process (Intra-Company Transferees, EU Blue Cards, Skills and Talents), as well as family members of holders of these permits, have been exempted temporarily from biometric compliance in the departments using the one-stop OFII process. This exemption is valid until completion of the deployment of biometrics. France had aimed at full deployment by the end of the first half of 2013, but only a few departments have implemented biometrics to date: Loire-Atlantique, Alpes-Maritimes, Hauts-de-Seine, SaÔne-et-Loire, Essonne, Seine-et-Marne, and Puy-de-DÔme. However, the deployment will affect all French departments by the end of the year.
 
Back to Top

 
5. ITALY
 

Croatian nationals wishing to work in Italy are subject to some restrictions, but Italy has lifted restrictions for certain categories of Croatian workers.

Restrictions on Croatian Nationals; Exceptions

As noted above, Croatia joined the European Union (EU) on July 1, 2013. Member States can maintain restrictions on the right of free movement of workers for citizens of "new" Member States during a transition term. In contrast to the first Italian program of integration of Croatia in the European Union, Italy has now announced that Croatian nationals are subject to some restrictions in accessing the Italian labor market. Restrictions will be lifted, however, for the following categories of Croatian workers:

  • Domestic workers
  • Seasonal workers employed in agriculture and tourism for one or more work contracts with a maximum duration of 9 months
  • Professional nurses, managers, athletes, circus workers, marine workers, artists, dancers, musicians, and all other categories of workers listed in article 27, clause 1 of the Italian Immigration Law, excluding university professors, interpreters, and translators
  • Researchers
  • Highly skilled workers
As of July 1, 2013, the categories of workers listed above can be hired as all other EU citizens. For all other workers, it is still necessary to apply for a work permit.
 
Back to Top

 
6. SOUTH AFRICA
 

A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

Transferring Employees and Their Families to South Africa

Under current South African immigration law, a company can transfer or deploy one or more of its employees to a company that is "operating in South Africa." This is on condition that the two companies are in a holding, subsidiary, or "affiliate relationship."

There are three key conditions to qualify for such a permit. First, the person must be an existing employee who will return to his or her employment at the offshore company at the end of the term of the deployment. Second, the company in South Africa must in fact be operating. And third, there must be a qualifying relationship between the two companies. The term "affiliate relationship" is not defined and deliberately allows for considerable flexibility. These permits are usually issued for a two-year period and cannot be renewed or extended.

The permit requirements fall into two broad categories: those that are specific to the intra-company transfer work permit and those that are required for any permit that authorizes a period of residence in South Africa of more than three months. The key requirements specific to the intra-company transfer work permit include, among other things, a copy of the employee's offshore contract and proof that he or she has the skill needed for the assignment in South Africa.

All family members (assuming they are not South African citizens or permanent residents) accompanying the foreign national to be transferred, no matter their ages, must apply for appropriate permits to reside in South Africa.

As may be suggested by the "transfer" permit's name, South Africa's permit system is activity-specific. So if the family includes dependents who will be studying at a tertiary institution or a school (but excluding a pre-school), they must obtain study permits before they can attend the institution. If the dependent is not attending school or is home-schooling, he or she needs a long term visitor permit to accompany the holder of the transfer permit.

For purposes of residence in South Africa, the Immigration Act recognizes non-formalized life partnerships and does not discriminate based on sexual orientation. Couples do not need to be married or in a civil union for purposes of obtaining a residence permit. But the couple will need to prove the fact of the spousal relationship. The term "spouse" refers to the partner, whether married or not. The relationship must be monogamous. The spouse also must obtain a long-term visitor permit to accompany the holder of the transfer permit.

There is no special dispensation- for the spouse who wishes to study, be employed, or be self-employed, while in South Africa. They (and/or the place of learning or employer) must comply with all the relevant prescribed requirements of the appropriate temporary residence permit. This is the case even if the spouse wishes to work (or remain working) for an employer back home even where the company does not have a presence in South Africa. [There is a special dispensation for persons who are in a spousal relationship with a South African citizen or permanent resident. Please consult your Alliance of Business Immigration Lawyers attorney about this.]

Under current policy, the South African Department of Home Affairs prefers that people seeking to take up a post in South Africa (and their families), should apply for the appropriate permit at the nearest South African embassy or consulate and have obtained the permit(s) before they leave for South Africa. Application can be made for all the appropriate permits (for the transferee, the spouse, and the children) at the same time. The consequent permit, if approved, will be endorsed into the applicant's passport.

The general rule is that foreign nationals must at all times have a permit in their passport that accurately describes the purpose and period for which they have been authorized to enter and remain in South Africa. If those circumstances change, the person must apply to the Department of Home Affairs for authorization to remain in the country under those changed circumstances.

A significant amendment to South African law is expected in the next few months. It is imperative that proper and comprehensive advice be sought from a skilled immigration attorney.

 
Back to Top

 
7. UNITED KINGDOM
 

Various new developments have been announced.

New Super Priority Visa Service Launched for Business Visitors

The Home Office has begun piloting a new same-day super priority visa service, which it hopes to roll out more widely, including in the United States. The first pilot was introduced in India for same-day processing of business visitor visa applications for those meeting the eligibility criteria. The fee for the service is equivalent to £600 (including local taxes) in addition to the standard visa fee.

The Home Office has confirmed that its target is to process super priority visa applications on the same day they are received. To use this service, applicants must book an appointment and attend either the New Delhi, Mumbai, or Chennai visa application center between 8:00 and 9:30, Monday to Friday. The appointment can be booked online. Biometric information must be provided during the appointment. In advance of the appointment, it is necessary to complete the online application form and ensure that all necessary documents to support the application are taken to the appointment.

To meet the eligibility criteria, an applicant must be applying for a six-month or two-year multiple entry visitor visa (excluding student visit visas) and must have traveled without difficulty in the last five years to one of the following countries: United Kingdom, United States, Australia, New Zealand, Canada, or a Schengen country, or must be an employee of a company or business that is a member of the Business Express Programme (managed by UK Trade and Investment in India) and be traveling as an official business visitor.

Applicants are advised to read and sign the terms and conditions before applying, and must submit the signed copy with their visa applications. The Home Office advises that those with an adverse immigration history should not use this service; for example, where a business visitor visa application has been refused in the past.

There are plans to roll out this service in the United States later this year.

Home Office Launches Consultation on the Prevention of Illegal Work

The Home Office is carrying out a consultation on the current civil penalty regime that applies to employers who are found to be employing unauthorized workers. The civil penalty regime has been in place since February 2008 and imposes fines of up to £10,000 per employee found to be working without permission, together with a requirement for employers to perform annual employment verification checks on those with limited leave (permission) to remain.

The consultation and online survey make it clear that the Home Office is considering the following changes to the current legislation:

  • Increasing the civil penalty from £10,000 to £20,000 for repeat offenders with a maximum penalty of £15,000 for the first time offenders
  • Simplifying the formula for calculating the penalty and the factors for reducing this where employers cooperate and report
  • Removing the current process of serving a warning letter on first-time offenders
  • Considering previous civil penalties as an aggravating factor when determining the current penalty level
  • Reducing the number of acceptable documents that can be produced to simplify the right-to-work checks
  • Using a biometric residence permit as the main acceptable document for right-to-work checks for most non-European Economic Area (EEA) nationals
  • Removing the requirement that employers conduct annual checks on any employees who have limited permission to reside in the UK and instead only requiring employers to check at the end of the employee's period of stay
  • Introducing measures to allow recovery of a civil penalty from directors and partners of limited liability businesses following failure to pay by the business

The proposed changes appear to be aimed at simplifying the current regime for preventing unauthorized work and in targeting repeat offenders. In particular, removing annual employment verification checks for those employees with long-term permission to work is welcome, as this is an unnecessary and burdensome requirement. However, removing the first warning process could mean that new employers and start-up businesses could now face penalties for first-time inadvertent breaches without being given the opportunity to show they can comply.

Also, there are significant risks that by reducing the number of acceptable documents proving a person's right to work, some migrants who are lawful long-term residents without the new biometric residence permits will not be able to access employment. As part of the consultation process, the Home Office is inviting businesses to undertake a short online survey.

CONSULTATION DOCUMENT

Home Office Launches Internal Review of Tier 2 of the Points-Based System

The Home Office is undertaking an internal review to consider how to improve the application and enforcement of immigration policies and processes in relation to skilled and highly skilled migrants. The review will include an assessment of the administration and enforcement processes that businesses encounter when employing a Tier 2 worker, including becoming a licensed sponsor and the processes migrants are subject to both overseas and in the United Kingdom (UK) when obtaining permission to work. The review will consider this from the point of view of UK businesses, particularly small- and medium-sized enterprises' experience of these processes. It will look at what can be done to:

  • improve the processes from a customer perspective;
  • examine any scope for easing compliance rules;
  • examine how to reduce unnecessary bureaucracy.

The Immigration Rules underpinning the Points-Based System and the principles of sponsor obligations are outside the scope of the review.

Home Office Launches Business Helpdesk

On July 1, 2013, the Home Office launched the Business Helpdesk in response to demand from employers for a single point of contact for queries about becoming a sponsor or hiring people from outside the EEA. Following a successful pilot, the new service is now available to all sponsors, businesses, and Tier 1 investors.

For employers, the Business Helpdesk can provide:

  • Clarification of immigration policy or guidance;
  • Status updates on applications for sponsorship;
  • Status updates on any applications made after becoming a sponsor;
  • Status updates on applications to work or stay in the UK made by employees;
  • A check to ascertain whether a prospective or current employee has filed an application with the Home Office;
  • Information to enable employers to check on work authorization; and
  • Technical help for the Sponsor Management System.

Related e-mail should be sent to businesshelpdesk@homeoffice.gsi.gov.uk and will be answered within two days for status updates and up to five days for more complex queries.

HELPDESK GUIDE

EMPLOYEE CONSENT FORM

Croatia Becomes a Member of the EU; UK Notes Work Permission Need for Croatians

As of July 1, 2013, Croatian nationals can now enter and live in the UK without permission under the Immigration Rules. However, they will need permission to work in the UK unless they are exempt.

SUMMARY OF THE WORKER REQUIREMENTS

FAQ

Students wishing to study in the UK do not need to be sponsored under Tier 4, but if they wish to also work while studying, they must obtain an accession worker authorization document, unless they are exempt.

GUIDANCE FOR EMPLOYERS

Expansion of Priority Visa Services

The Home Office is introducing a range of priority visa services in many visa application centers around the world, including business visitor and Tier 2 visa applications. For an additional fee, the relevant center will prioritize the application and will in most cases process the application within 5 working days.

The table below lists key countries offering this service. The fee quoted is in addition to the standard visa fee.

Early Passport Return for Tier 2 (ICT) Applications

On July 22, 2013, the Home Office announced a pilot for the early return of passports for Tier 2 intra-company transfer (ICT) applicants using the postal route for submitting their applications to remain in the UK. Passports will be returned within 7-10 days of receipt by the Home Office. Any biometric residence permit that was also submitted with the application will be returned at the same time. This will enable applicants to continue to use their passports and to travel until a decision is made on their applications, provided they still have valid leave that covers the timethey intend to be out of the UK. With the advent of the priority postal submission route, the need for this new service will be of limited value, although if the pilot proves successful, additional application types will be considered for this service.

UK Government Targets “Unwanted” Migrants

In January, reports emerged that ministers had contemplated running an anti-UK ad campaign aimed at dissuading Bulgarian and Romanian nationals from moving to the UK. It was therefore less shocking, though still remarkable, when Liberal Democrat MP Sarah Teather disclosed in a recent interview that an internal ministerial group, initially operating under the title, "The Hostile Environment Working Group," had been formed with the mandate of making the UK unwelcoming to "unwanted" migrants.

Since 2010, the Conservative-led coalition government has focused on reducing annual net migration from the hundreds of thousands to the tens of thousands. This fixation on absolute numbers rather than systemic improvement has led to a series of poor, politically driven policies that have inhibited businesses, damaged institutions of higher education, and driven wedges between families.

The tenor of the Government's approach can be seen in the Home Office's recent Annual Report and Account. There, the department distilled its "vision" to the following goals:

  • cut crime
  • reduce immigration
  • prevent terrorism

While this is just a summary, it is notable that "reduce immigration" (which also includes economically productive, culturally valuable, and generally beneficial forms of migration) is unqualified and slotted between crime and terrorism.

Indeed, by pursuing these objectives and intentionally creating a hostile environment, the government has not only succeeded in making life uncomfortable for immigrants of all stripes, but also has managed to harm many of its own citizens.

Minimum Salary Requirement

On July 9, 2012, a number of dramatic changes to the Immigration Rules took force. Among the most significant of these amendments were new minimum income requirements for British citizens and settled persons seeking to sponsor a non-EEA partner or child. Under the new rules, only certain sources of income may be relied on to meet the threshold and the UK government will not consider an applicant's previous earnings, present jobs, or future earning capacity. Additionally, unlike in the past, neither applicants nor their sponsors may rely on third party guarantees of financial support.

As a result, it is now impossible for many UK citizens to bring their non-EEA partners and children to the UK. Indeed, a recent report published by the All-Party Parliamentary Group on Migration (a cross-party group of Conservative, Labour, and Liberal Democrat MPs and Peers) estimated that 47% of the UK working population would fail to meet the requirements.

Stranger still, British citizens now face more restrictive rules for sponsoring a partner or child in the UK than EU nationals (who may enter under EU law and avoid the minimum salary requirement). This bizarre result has served to highlight an alternative path for British citizens and their family members known as the "Surinder Singh route."

The Surinder Singh Route

The Surinder Singh route stems from precedent established in R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department, [1992] 3 CMLR 358 ECJ (hereinafter Singh), heard before the European Court of Justice (ECJ). In Singh, Surinder Singh, an Indian national, and his wife, a British citizen, worked in Germany for a number of years. The couple returned to the UK, with Mr. Singh entering as the husband of a British national. Following their return, the couple divorced, leading the UK government to seek Mr. Singh’s removal. Mr. Singh challenged the order and the matter was referred to the ECJ to determine whether Mr. Singh had a right to remain under EU law.

The court held that because Mr. Singh's wife had exercised her right of free movement within the EU, he, as her spouse at the time, had a right under European law to enter and remain in the UK. Specifically, the court stated: "The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in the territory of another Member State."

Accordingly, a UK citizen exercising his or her right of free movement by working in a Member State for at least three months may return to the UK with his or her spouse under EU law, thus permitting the non-EEA spouse to enter as the spouse of an EEA citizen and avoiding the UK's minimum salary requirement. See HERE.

While the Surinder Singh route has been criticized by some as a loophole, it is not. Rather, it is the state of EU law, and therefore simply a different avenue. As such, a number of families faced with separation have availed themselves of the option.
Even so, the minimum salary requirements may not be an issue for long. The rule has already been challenged and it appears that it is only a matter of time before it will be struck down or amended.

MM, Javed and Majid v Secretary of State for the Home Department

Nearly a year to the day after it was introduced, the High Court in Birmingham handed down a judgment addressing legal challenges to the minimum income threshold.
In MM, Javed and Majid v Secretary of State for the Home Department [2013] EWHC 1900 (Admin), three claimants (two British citizens and one Lebanese refugee) sought to quash the minimum salary requirements. As articulated by Mr. Justice Blake, the central issue of the case was "whether the minimum income provisions of the maintenance rules when applied to sponsors who are British citizens or refugees whose incomes and savings combined do not meet them are a disproportionate interference with the right to respect for family life."

In arriving at its decision, the court considered the effect of the income requirement when combined with additional associated conditions, including:

  1. the prohibition on the use of savings to enhance a shortfall in income unless the savings amount to more than £16,000;
  2. the use of a 30-month period for income projection instead of 12 months;
  3. the prohibition on the use of third party funds to supplement maintenance; and
  4. the prohibition on the use of the future earning capacity of the spouse.

While the High Court held that the minimum income requirement was not unlawful on the basis of discrimination or due to any discord with the doctrine of the best interests of a child, it concluded that, when viewed alongside one or more of the above conditions, the aggregate effects were "so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim."

The Court declined to quash the rules, instead leaving it to the Secretary of State to decide what amendments would be needed to satisfy the requirements of proportionality.
This decision offers some hope to families affected by the July 9, 2012, changes and, for the time being, seems to have put the minimum income requirements on hold. After the judgment was handed down, the Home Office issued a statement that it had paused decisions on related spouse/partner and child settlement applications to consider the holding and that a further announcement was forthcoming. See HERE.

It is unclear whether the government will appeal the High Court’s decision. What is clear, however, is that the pitch of the government’s policies appear to be tuned more to the frequencies of political rhetoric than positive reform. Unfortunately, this short-term view, driven by outputs rather than outcomes, promises to continue to create a hostile environment for both valuable migrants and UK citizens.

 
Download:
 
Back to Top

 
8. Member News
 

Mark Ivener served on the "Best Practices for Investor Filings" and "Joint Overview of USCIS Policy Memo" panels at the Southern California EB-5 Conference in Newport Beach, California, on July 15, 2013.

Charles Kuck has authored a new blog entry. "Immigration Reform – What Words Mean Makes All the Difference"

Sharon Mehlman will speak at the American Immigration Lawyers Association's PERM conference in Chicago, Illinois, on August 19, 2013. The topic is "The Dreaded PERM Audit and How the Compliance File May or May Not Help."

Cyrus Mehta has published several new blog entries. "Hey Boss, I Need Premium Processing: Can an H-1B Employee Pay the Premium Processing Fee?" "Bad Timing Alberto: BIA Has Confirmed That Same Sex Spouses Are Entitled To Immigration Benefits After US v. Windsor" "How Extraordinary Does One Need To Be To Qualify As A Person of Extraordinary Ability?" He also co-authored a blog entry. "How Cyrus' View of Religious Toleration May Have Inspired the U.S. Constitution"

Angelo Paparelli has authored or co-authored several new blog entries. "If Immigration Law Were a Person It Would Sing: 'Oh Lord, Please Don't Let Me Be Misunderstood" "You Say You Want a Devolution—In Immigration That Is" "USCIS, America's Immigration Cutcherry, Adopts New Procedures as the Boss Readies for a Move Upstairs" is available at http://ow.ly/mJMD5.

Stephen Yale-Loehr wrote an op-ed about the U.S. Senate immigration bill that was published in El Norte, a Mexican newspaper, on July 4, 2013. He summarized what the Senate bill would do. He said, among other things, that the bill would both benefit and hurt Mexicans: "The Senate bill contains a legalization program, but it requires a long wait and many requirements, so many people may not end up being able to legalize their status. Also, the border security provisions in the Senate bill are too tough. They unnecessarily militarize the border and would harm U.S.-Mexican relations." SPANISH VERSION OF MR. YALE-LOEHR'S OP-ED.

Mr. Yale-Loehr was featured in several recent LexisNexis podcasts and articles:

Comprehensive Immigration Reform

The Fence and the House

Immigration & Nationality Law: Problems and Strategies

Mr. Yale-Loehr was quoted:

  • In Wall Street Journal on July 2, 2013, in "Snowden's Asylum Effort Hits Roadblocks." He said Mr. Snowden could ask Russia to issue him a refugee travel document under the United Nations convention on refugees.
  • In Time.com on July 2, 2013, in "Snowden's Worst-Case Scenario: What If No Countries Take Him?" He said he thought Mr. Snowden could be in Moscow for a long time, but that he could be helped by Article 28 of the United Nations convention on refugees, which asks member states to give "sympathetic consideration" to those who can't obtain the necessary documents from their home countries.
  • In the Gannett newspaper chain, in articles about the Senate immigration bill. Commenting on the estimated 11 million people who entered the United States without authorization or overstayed their legal visits before December 31, 2011, who would be offered a 13-year path to citizenship beginning with their application for registered provisional immigrant status, Mr. Yale-Loehr noted that requirements under the Senate bill would exclude some.

Mr. Yale-Loehr also was quoted in an article about the prospects for immigration reform in the House of Representatives. A version of the story was published on July 9, 2013, in the Arizona Republic.

Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide "first-rate" and said the key strong point of the book is its "outstanding usability." She said she highly recommends the book and notes that it "is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management. Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes "the fact that the [guide] focuses not just on each country's immigration law itself but also addresses related matters such as tax and social security issues." She noted that the India chapter "is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.'

This comprehensive guide is designed to be used by:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL's attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book's profilees share a common trait, it's a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America's success. It tells the true story of our nation: E pluribus unum--out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association's Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher's "IPPY" Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association's Best of Photojournalism 2012. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio's photo blog.

For more information, e-mail Lauren Anderson at lauren@greencardstories.com. See also the Green Card Stories website.

 
Back to Top