Immigration and Global Mobility Update

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Date:
01 Aug 2018

See below our Immigration and Global Mobility Update, which shows the changes in global mobility and immigration from around the world over the past few months. We aim to update you regularly.

ImmigrationMobilityUpdate.png Canada: Removal of barriers to permanent residence for economic class applicants with a health condition 

Applicants for permanent residence under economic streams can be found medically inadmissible if their health condition might reasonably be expected to cause ‘excessive demand’ on health or social services. However, the Federal Government has:

  • tripled the cost threshold for establishing excessive demand; and
  • removed references to special education, social and vocational rehabilitation services and personal support services in the way ‘social services’ is defined.

These changes remove barriers to permanent residence for economic class applicants. 

Katie Van Nostrand, partner at Mathews Dinsdale & Clark LLP


Canada: Canada to expand biometric requirements for temporary and permanent resident applicants 

The Government of Canada currently collects biometrics from nationals of over 30 countries.  Over the next two years, Canada is expected to announce regulations which extend biometrics requirements to all permanent and temporary resident applicants.

There will be some narrow exceptions to the requirement, including US Nationals. Biometrics may be provided at certain collection centres in Canada and abroad. 

The Government also intends to introduce measures to verify biometrics upon arrival at major airports in Canada and to facilitate biometric-based information sharing with the ‘Migration 5’ partners (i.e. United States, United Kingdom, New Zealand and Australia). 

It is anticipated that the changes will be rolled out in two phases: first for nationals of Europe, the Middle East and Africa (beginning 31 July 2018); and second for nationals of Asia, Asia Pacific and the Americas (beginning 31 December 2018).

Katie Van Nostrand, partner at Mathews Dinsdale & Clark LLP


Colombia: Changes to immigration rules, including sanctions and fines 

By Resolution 1238, 2018, which came into force on 16 May: 

  • Where there has been a breach of the law caused by ignorance of the law or failure to report on time, there is now a period of 90 days in which the party responsible can try to rectify it. If rectified, the penalty for the breach will not be charged.
  • Deportation has become the primary sanction for ‘irregular stay’, but under special circumstances, the authorities can convert the penalty to a fine.  Voluntary departure may be requested so as to avoid deportation.

Moderate breaches of immigration law are now subject to much higher penalties, ranging from 8 to 40 minimum legal monthly salaries. Under the previous rules, the penalties were from 1 to 15 minimum legal monthly salaries.

Catalina Santos (partner) and Diana Monsalve (associate) at Brigard Urrutia 


Denmark: The Danish Secondment Act amended with new sanctions for non-compliance

Under the Danish Secondment Act, employers posting employees to perform services in Denmark are required to register with the Danish RUT Register. 

When registering, the employer must provide certain types of data about the employees seconded and the assignment in Denmark, including the identity of the employees, a contact person, the duration of the assignment, location of the workplace and information on social security. 

Previously, failure to meet this requirement could result in the employer receiving a fine of up to DKK 10,000 (approximately EUR 1,340). 

With effect from 1 July 2018, the sanctions have been strengthened: the Danish Working Environment Authority can now order an employer to register with the RUT and if employer fails to comply, the employer may be required to pay a daily fine – presumably of around DKK 1,500 (approximately EUR 200) – until registration is completed.

Torben Mølgaard Hededal, partner at Norrbom Vinding


Denmark: Certain non-EU employees with a work permit may now carry out other activities on the side

Under the Danish Aliens Act, foreign employees (i.e. non-EU nationals) must obtain a work permit for every employment relationship, including any sidelines. The Danish Parliament recently adopted a Bill to make the rules more flexible for some employee groups. The changes came into effect on 12 June 2018. 

Foreign employees who work as researchers, including PhD students, will be entitled to carry out activities on the side (e.g. giving lectures) without having to apply for another work permit, provided that the activity has a connection with the main activity covered by the work permit. 

Foreign employees with other types of work permit will still not be entitled to have sidelines without first applying for a separate work permit.

However, all foreign employees with a work permit will be entitled to do unpaid voluntary work in not-for-profit organisations. 

Elsebeth Aaes-Jørgensen, partner at Norrbom Vinding


European Union: New European rules for posted workers 

The revised Posted Workers Directive was signed on 28 June 2018 but Member States have until 30 July 2020 to adapt their legislation to the new secondment rules and to apply them.  

The revised rules bring changes in three main areas: the remuneration of posted workers, long-term postings and temporary agency workers.

What the impact of the new rules will be depends on how far Member States have already gone towards implementing the current Posted Workers Directive.

However, global organisations must bear in mind that in two years’ time, local legislation may apply when seconding employees within and to Europe.

Sophie Maes, partner at Claeys & Engels


Italy: Relocation of business activities 

A Decree came into force on 14 July 2018 stating that if a company (Italian or foreign) that has received state aid to allow investment moves to a non-EU country within the five years of making the investment, it loses the aid and must pay an administrative sanction of two to four times the amount of the aid received plus accrued interest. The same rule applies where part of the business activity is moved.  If the company moves to another workplace within Italy or the EU, it loses the aid it has received, but without the administrative sanction. 

In addition, Italian and foreign companies benefitting from public aid would lose the aid if, within five years following the investment, they reduce the workforce by more than 10%. Repayment of the aid is proportional to the percentage reduction of workforce.

Reductions in the workforce exceeding 50% would lead to full return of the aid.

However, it must be noted that the Decree still needs to be converted into law by mid-September and so may be subject to amendment. It could also expire if not converted in time. 

Valeria Morosini, partner at Toffoletto De Luca Tamajo e Soci


New Zealand: Discontinuation of passport visa labels; increases to minimum income thresholds; and certain amendments to align with current UN sanctions

From 4 July 2018, Immigration New Zealand will no longer issue passport visa labels. Instead, successful visa applicants will receive an eVisa in the form of a letter of approval via email.

Immigration New Zealand has increased a number of minimum income thresholds, including:

  • Under the Samoan Quota Scheme and the Pacific Access Category, the minimum income requirements for applicants who include partners and dependent children in their applications is now NZD 38,199.20, a 13% increase (as of 1 June).
  • The minimum income threshold for work visa holders (under the Essential Skills and Religious Worker Work Visa Category) seeking visitor or student visas for their dependent children has increased by over 15% to NZD 42,944.20 (as of 1 July).

Effective 28 June, immigration instructions have been updated to reflect current UN sanctions, and now include a ban on the grant of visas with work rights to nationals of the Democratic People’s Republic of Korea and restrictions on the grant of transit visas to certain groups, as designated by the UN Security Council.

Simon Lapthorne (executive partner) and Hannah King (senior solicitor) at Kiely Thompson Caisley


Peru: Hiring Venezuelan citizens under certain work permits no longer requires the approval of the Labour Ministry

Since 13 July 2018 Venezuelan citizens hired under either a Temporary Permit of Permanence (PTP) or an Extraordinary-Provisional Work Permit have been exempt from the need for approval of their employment contract by the Labour Ministry, and from certain restrictions on the content of their employment contracts.

José Antonio Valdez, partner at Estudio Olaechea


Poland: Government expands the list of jobs that do not require a labour market test for work permit purposes 

Effective from 1 July 2018, a country-wide list of nearly 40 highly demanding jobs across various industries (including IT, construction, healthcare and transportation) has been adopted, for which it is now easier to obtain a work permit. In the case of these jobs, it is no longer necessary to complete a ‘labour market test’. This is a clearance issued by the employment office confirming the lack of eligible candidates in registers of unemployed persons and it is normally required before a work permit can be obtained.

Tomasz Rogala (senior associate) and Marcin Sanetra, (associate) at Raczkowski Paruch


Russia: New national minimum wage

From 1 May 2018 the federal minimum wage has been increased to RUR 11,163 (approximately EUR 153). Previously, the minimum wage was RUR 9,489 (approximately EUR 130) per month. The changes apply to all employers operating in Russia.

Irina Anyukhina (partner) and Anastasia Petrova (associate) at ALRUD Law Firm


Russia: New requirements in relation to migration registration for foreign citizens in Russia 

Under Russian immigration law, foreign nationals must be registered at their place of stay in Russia. The registration is done by so-called hosting/inviting parties by filing a notice to the migration authorities indicating the address of stay of the foreign citizen and certain information about the host. 

Up until now, employers have tended to register their foreign employees (and family members, etc.) at the legal address of the company, as the owners of properties where foreign employees actually live are normally reluctant to assist in migration matters for foreigners.

But since 8 July 2018, the law requires foreign nationals to be registered at the address where they actually live. This means that they can only be registered at the address of the employer if they live at that address. 

Irina Anyukhina, partner at ALRUD Law Firm


Slovakia: Changes to the Act on Asylum effective 

From 20 July 2018, some amendments to the Act on Asylum come into force, changing the period for deciding an asylum application from 90 days to six months, in accordance with EU Directive 2013/32.

The Act also extends the reasons for termination and withdrawal of asylum, as well as the termination of any additional protection for foreign nationals.

Dajana Csongradyova, associate at NITSCHNEIDER & PARTNERS


Switzerland: New obligations on employers to give local jobseekers priority for new positions

On 9 February 2014 a popular initiative “against mass immigration” was approved, calling for limits and yearly quotas on foreign nationals allowed into Switzerland (irrespective of their EU or non-EU status) and for the principle of national priority to be applied to workers. The provisions necessary to implement this had to be put in place within three years. 

On 1 July 2018, the implementing provisions entered into force. The new rules provide an obligation on employers in sectors with an unemployment rate of 8% (5% from January 2020) to announce job vacancies to the local unemployment office and provide a ban on publishing advertisements in any other way for five working days. This gives jobseekers registered with the unemployment office priority and exclusive access to the ads during that period. In addition, employers must invite candidates registered with the unemployment office whose profiles correspond to the position for an interview. The current list of professions affected includes certain lines of work in the construction and hospitality sectors.

Employers that violate their obligations may face fines of up to CHF 40,000.

Pascal Giorgis, partner at Schneider Troillet


UK: The way of calculating continuous residence in the UK for indefinite leave to remain (ILR) applications has changed 

On 6 July 2018, transitional provisions came into force, once again changing the way in which the Home Office calculates continuous residence in the UK for indefinite leave to remain (ILR) applications.

The original assessment by the Home Office required that an ILR applicant must not be absent from the UK for more than 180 days in any of the five blocks of 12-month periods immediately preceding the application date.

A small change to the wording of the rule on 11 January 2018 meant that applicants would instead be permitted absences of no more than 180 days during any 12-month period over the five years, i.e. a rolling calculation of absences.

However, from 6 July 2018 onwards, the new rolling calculation will now only apply to those migrants granted visas on or after 11 January 2018. All those granted visas/leave to remain before 11 January 2018 will have their absences calculated under the old, five blocks of 12 months calculation. So, if a migrant has a five-year visa granted on 10 January 2018, all their absences will be calculated under the old system when they apply for ILR in January 2023.

Ben Maitland, managing associate at Lewis Silkin