• Insights

Immigration and Global Mobility Update

United Kingdom
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.

 Austria: New visa to enable trainees to complete study-related internships 

A new visa category for trainees was introduced on 1 September 2018 when Austria implemented EU Directive 2016/801. Third-country nationals, studying in a third country (or who obtained a university degree in a third country no more than two years ago) may apply for this kind of visa in order to complete a study-related internship in Austria for up to six months. 

Birgit Vogt-Majarek, partner at Kunz Schima Wallentin Rechtsanwälte GmbH Stefan Burischek, associate at Kunz Schima Wallentin Rechtsanwälte GmbH 

Chile: Online appointment booking facility 

The Department of Foreign Affairs has implemented an online appointment system for those who have applied for visas in Chile. People can now request an appointment with an immigration authority official online. 

This should make the immigration procedures more user-friendly, as there should no longer be queues and long waits at the Department of Foreign Affairs to take care of most procedures: visa extensions, visa stamps, etc. 

Marcela Salazar Flores, partner at Munita & Olavarría 

China: The work permit requirement for employees from Hong Kong, Macau and Taiwan working on the mainland has been abolished 

The State Council issued a Notice on 3 August 2018 abolishing the work permit requirement for employees from Hong Kong, Macau and Taiwan working on the mainland. 

The Ministry of Human Resources and Social Security plans to introduce supporting measures to help people from Hong Kong and Macau to work and start businesses on the mainland. 

Tracy Zhu, associate at Fangda Partners 

Europe: European Court of Justice: Broad interpretation of ‘carousel secondment’  

If an employee is seconded within the EU, s/he remains subject to the social security regime of the sending Member State and does not have to be affiliated to the social security of the host Member State, as long as a number of conditions are fulfilled. One of these is that the employee cannot be seconded to replace another seconded employee. 

On 6 September 2018, the ECJ ruled in the Alpenrind case (C-527/16) that the replacement of a seconded employee by an employee seconded by another employer is also not permitted. In such a case, the secondment conditions will not have been fulfilled and the employee must be made subject to the social security of the host Member State. 

The Court further confirmed its established case law on A1 certificates. Except in cases of fraud (see Update from April 2018), an A1 certificate binds the institutions of the host Member State as long as the certificate has not been withdrawn or declared invalid. 

Sophie Maes, partner at Claeys & Engels 

Europe/Belgium: European Court of Justice: Belgian Anti-abuse Act a step too far 

In the context of the fight against fraud in the sphere of secondments, the Belgian legislator has given the courts, the social security authorities and the social inspectorate the ability to set aside an A1 certificate issued by another Member State confirming that a worker was subject to its social security regime, in the event of abuse. 

On 11 July 2018, in the case of the European Commission -v – Kingdom of Belgium (C-356/15) the ECJ ruled that national laws that make it possible to undermine an A1 certificate by unilaterally subjecting a worker to its social security legislation, are not compatible with the principle of sincere cooperation between Member States. 

Therefore, the Belgian courts may only unilaterally set aside an A1 certificate within the narrow limits set out in the Altun case (see Update from April 2018)

Sophie Maes, partner at Claeys & Engels 

Finland: New conditions of entry and residence for third-country nationals based on internship 

Since 1 September 2018, there have been new conditions for granting a residence permit to third-country nationals for internships. 

A temporary residence permit for up to 18 months will be granted if at least one of three conditions is fulfilled: 

the application is within two years of obtaining an academic decree;  

the internship is part of an intergovernmental agreement or exchange programme organised by non-governmental organisation; or  

the applicant is 18-30 years old and does the internship whilst studying Finnish or Swedish at a foreign university.  

Seppo Havia, partner at Dittmar & Indrenius Attorneys  Iisa Koskela, associate at Dittmar & Indrenius Attorneys  Johanna Teijonmaa, associate trainee at Dittmar & Indrenius Attorneys 

Hong Kong: Hong Kong Government Immigration Department will recognise same-sex civil partnerships  

The Hong Kong Government announced that from 19 September 2018, their Immigration Department will for the first time recognise the nature of same-sex civil partnerships, which have been entered into in accordance with laws outside Hong Kong, as being akin to spousal relationships in a heterosexual marriage. 

This new policy means that the other party to a same-sex partnership will now be able to apply to join their same-sex partner, who has been admitted into Hong Kong, for residence in Hong Kong as a dependant. Such applications for admission of a dependant will be favourably considered by the Director of Immigration if the individuals meet the normal immigration requirements. As is the case with heterosexual marriages, there should be reasonable proof of a genuine relationship between the applicant and the sponsor; no known record to the detriment of the applicant; and the sponsor should be able to support the dependant’s living at a standard well above the subsistence level and be able to provide him or her with suitable accommodation in Hong Kong. 

Antonia Grant, partner at Lewis Silkin 

Italy: Support from local employment offices in job searches 

The Italian National Agency for Active Labour Market Policies, the ANPAL, has clarified that even if an EU citizen is not ‘resident’ they can still access services to help them find a job in Italy. 

Thus, unemployed EU citizens who stay in Italy can, even if they are not resident: 

stay in Italy for at least three months, even without a job and  

request support from local employment offices in their job search.  

Valeria Morosini, partner at Toffoletto De Luca Tamajo & Soci 

New Zealand: Changes to post-study work rights for international students 

On 26 November 2018, a number of changes to New Zealand’s immigration instructions will come into effect affecting post-study work rights for international students.  

The changes are set to remove employer-assisted post-study work visas at all levels.  Instead, a range of open work visas will be available allowing individuals to work for any employer, with varying durations and conditions depending on: 

The level of qualification; 

Whether the individual is working towards registration with a professional or trade body; and 

Whether the individual is outside of the Auckland region. 

Simon Lapthorne, executive partner, Kiely Thompson Caisley Hannah King, senior solicitor, Kiely Thompson Caisley 

Portugal: Amendments to immigration law 

On 1 October 2018, several amendments to the Immigration Act will come into force. The changes to the law mainly relate to: 

the streamlining of permit approvals for individuals wishing to attend professional education; for entrepreneurs wishing to invest; and for highly qualified individuals wanting to work in Portugal;  

simplification of the residence regime for seasonal workers and the creation of a new framework for employees transferred from other Member States.  

In addition, it will now be possible to do various visa and permit procedures online. 

Bruno Barbosa, partner at pbbr 

Spain: Implementation of EU Directive on entry and residence for study and research 

Recently, Spain has implemented Directive 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, study, training, voluntary service, pupil exchange schemes or educational projects and au pairing. It is effective from 4 September 2018. 

The Entrepreneurs’ Act 14/13 and Royal Decree 557/11 have been amended to include new permits to facilitate foreign nationals’ research activities, their mobility within the EU and the option for researchers and students to seek an employment. 

Ana Garicano, partner at Sagardoy Abogados 

United Kingdom: Settled Status system announced for EEA nationals and their Family Members  

The Home Office have now announced exactly how the Settled Status system for EEA nationals and their Family Members will work. They have also said that, given restrictions on time and resources, they would proceed with this system whether there is a deal or no deal situation come March 2019. 

The Settled Status system grants either Settled Status (essentially the same as Indefinite Leave to Remain), or “pre-Settled Status” which is a five year visa allowing the individual to live in the UK until they should be able to qualify for Indefinite Settled Status. The online form or android phone app, will first rely on information from HMRC (UK government tax body) and the Department of Work and Pensions. Those with five continuous years or more records, will be granted Settled Status. Those without, will be granted pre-Settled Status or have the option of submitting further evidence if they think they should be granted Settled Status. 

The system is currently being trialled on a small group of public sector employees. It will go through a staged rolled out until March when it should be fully operational and open to everyone. 

All EEA nationals and their Family Members will eventually need to register via the Settled Status system. 

Naomi Hanrahan-Soar, managing associate at Lewis Silkin LLP