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IMPACT – MEDIUM
Most EU member states, including France, Germany, the Netherlands, Spain, Portugal, Italy, Finland and others, are now implementing an EU directive that relaxes criteria and provides eased mobility for non-EU/EEA students, scientific researchers and interns. The directive, which was approved by the EU in 2016, updates and replaces directives from 2004 and 2005 that cover entry and stay of non-EU students and researchers in Europe.
Background: The EU Students and Researchers directive 2016/801 was adopted in May 2016. Member states were supposed to implement the directive no later than May 23, 2018, and most are now doing so. To date, a handful of EU countries, including Greece, Poland and Cyprus, have not yet transposed the directive into their national laws, while Denmark, Ireland and the United Kingdom have opted out of the directive.
The directive provides for relaxed rules for work authorization, residency and mobility within the EU and is intended to promote the EU as an attractive destination for non-EU/EEA talent in science and research.
Analysis & Comments: The directive provides expanded opportunities for employers and organizations to attract and retain non-EU/EEA nationals in training and internship programs and to conduct scientific research projects in multiple EU locations. Employers are reminded that the research project must be the same one for which the permit in the initial EU country was granted and that interns are only eligible for on-the-job training, not for regular employment. Each EU country may be at different stages of implementation, and rules may vary from country to country. Employers are encouraged to work with their immigration advisors to determine which options are currently available in individual destination countries.
Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
What is the change? The European Commission has proposed a package of reforms to move toward a “smart borders” system.
What does the change mean? The changes introduce stricter border checks, electronic tracking of non-EU nationals’ stays in the Schengen area and an electronic pre-authorization system for visa-waived nationals.
Key proposals:
Next steps: The European Parliament and the Council are now in the process of clarifying their positions on these proposals. Once they are finished, the proposals will go through a three-party procedure in which the European Commission, Parliament and Council negotiate with a goal of producing a mutually accepted regulation.
Analysis & Comments: An entry-exit system means that the authorities would be able to adequately monitor days spent in the Schengen area. It is likely that overstays would consequently be subject to sanctions and that return decisions or entry bans would be more easily enforced. It will be beneficial for frequent travelers to enroll in the registered travelers program, which allows them to electronically follow their days spent in the Schengen area and should facilitate, as well as speed up, the border crossing process. An extra administrative burden would be placed upon visa-exempt travelers, as they would need to be in possession of an ETIAS before travelling.
A study by Deloitte takes a comprehensive look at the European Union’s ICT Directive, comparing how individual countries have implemented the directive’s provisions and providing a detailed country-by-country breakdown of how the rules have been adopted.
The Intra-Corporate Transferees Directive, adopted in 2014 and implemented by 2016, unifies the rules for multinational companies transferring non-EU nationals to a European office in the same corporate group. Its intention was to create a single set of rules and procedures as well as ease intra-EU mobility of ICTs who are transferred to work in more than one EU country.
Key findings:
To view the full report, including which countries have adopted the above conditions, and a detailed summary of ICT rules and processing times for each country, click here.
What is the change? The European Council has adopted a regulation that puts in place an electronic travel information and authorization system, or ETIAS, for visa-waived non-EU nationals.
What does the change mean? Visa-waived third-country nationals will be required to register for an electronic authorization before traveling to the Schengen Area by applying online and paying a government fee of €7. The authorization would be valid for three years unless the traveler’s passport expires earlier.
Background: The electronic travel authorization system, similar to ESTA in the U.S. and eTA in Canada, is intended to provide another layer of security for countries that waive visas for certain nationals. Applicants will be able to apply online through the ETIAS; their personal information will then be compared against Interpol and EU databases. If there are no matches, the ETIAS will be issued automatically; if there is a match, the application must be processed manually within 96 hours. The ETIAS does not provide a right of entry, and border guards make the final decision on admission. Air and sea carriers will also be required to check if passengers have their travel authorization before boarding.
Analysis & comments: Visa-waived nationals traveling to the Schengen Area should anticipate the new system by 2021. EU, EEA and Swiss citizens will not be affected by the system, and visa-required nationals will still be required to apply for a visa at a consulate.
A European Union summit last week put migration at the top of its agenda, as tens of thousands of migrants from North Africa and the Middle East continue to pose major humanitarian and political challenges for the EU.
Italy, as the country of entry for most migrants crossing the Mediterranean, aims to change a rule that requires asylum seekers to claim asylum in their first country of arrival. German hardliners, including some of Chancellor Angela Merkel’s coalition partners, want to reinstate internal borders to allow officials to turn away secondary migrants from Italy and other countries of first arrival.
The European Council responded to this crisis with a renewed commitment to dealing with migration at a common EU level, proposing new processing centers in North Africa to prevent migrants from reaching the EU across the Mediterranean, but stopping short of reforming the “Dublin convention” rules that put pressure on countries such as Italy.
The European Council said it will:
BAL Analysis: Migration to the EU from Northern Africa and the Middle East continues to pose major challenges for the EU. The EU Council proposals were broadly welcomed by Italy and gave Merkel a chance to strike a compromise with hardliners in her government. Merkel agreed on Monday to tighten controls along Germany’s border with Austria and to set up “transit centers” in Germany to hold migrants who have already applied for asylum in other countries until they can be sent back.
While these EU refugee policies do not directly affect high-skilled and corporate migration, any threat to the operation of the Schengen Agreement, which allows visa free travel within mainland Europe, can ultimately have adverse business impacts. Conversely, attempts to develop a common EU approach on migration at the refugee level, pave the way for collaboration on issues such as intracompany transferees. BAL will continue to follow matters in Europe and will update corporate clients on any key developments.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
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What is the change? The European Parliament has adopted an EU directive on revised rules for posted workers.
What does the change mean? The revisions primarily concern equal pay and working conditions of posted workers compared with resident labor, but the directive also limits the duration of a posting to 12 months with one possible six-month extensions. Although workers may continue to work in the host country beyond that, they then become subject to all of the host country’s labor laws.
Background: The European Parliament approved the revisions to the Posted Worker directive on May 29. The key provisions of the revised directive are:
The original directive on posted workers was passed in 1996. EU member states only recently adopted another directive from 2014 on the enforcement of posted worker rules that imposed detailed notice requirements and rules on retention of records for both sending companies and local host companies.
BAL Analysis: The new directive signals that the EU continues to be concerned about the misuse of posted workers and social dumping that undercuts workers in host countries. As with other EU directives, individual countries may vary as to when and how they implement it and put it into effect in practice. BAL will follow the progress of the directive and provide updates as individual countries adopt it into their national laws.
The Court of Justice of the European Union has ruled that EU member states must include same-sex spouses, not just opposite-sex spouses, when granting residency to the non-EU spouse of an EU citizen.
“Although the Member States have the freedom whether or not to authorize marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory,” the court said in a statement.
The case involves a Romanian national and his American husband. The couple lived together in New York for four years, were married in Brussels under Belgian law permitting same-sex marriage and then sought residency in Romania. Romanian immigration authorities denied the request on the basis that the country does not recognize same-sex marriage and therefore the U.S. national could not obtain residency as a “spouse.” The EU court, however, said that the definition of spouse in the Directive on Free Movement must be interpreted to include an EU citizen’s same-sex spouse, regardless of whether same-sex marriage is legal in any individual EU member state.
Background: The EU does not allow nationals of any particular member state to rely on EU law ahead of national laws by choice; rather, EU citizens must move to another EU country to trigger an ability to rely on EU laws. In this instance, the Romanian national had “exercised a right of free movement” by moving to Brussels, during which time he strengthened his family ties by marrying his American partner, and so was able to rely on EU laws in his home country, Romania, under the “Surinder Singh” rule. The same provision would allow a U.K. national living in France with a non-EU partner to rely on EU free movement rules (rather than more punitive U.K. immigration rules for spouses) when returning to the U.K.
The EU does not have a uniform policy on same-sex marriage, and several countries do not facilitate same-sex marriage in national law, including Bulgaria, the Czech Republic, Poland and Romania. With the court’s ruling, an EU member state may no longer refuse a visa on the grounds that its national laws do not recognize same-sex marriage and must acknowledge that the right for family members, including same-sex spouses, to accompany their partners is essential to ensure that EU citizens can truly move freely within the EU.
BAL Analysis: This landmark ruling should allow greater certainty for EU citizens seeking to bring their non-EU same-sex spouses or partners to live with them as family members when exercising their right of free movement in another EU member state, or indeed if returning from the EU to their home country.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
What is the change? Applicants are experiencing significant delays in preapprovals for Intra-Company Transfer cards in Germany.
What does the change mean? Preapproval processing times for ICT cards is estimated at eight to 12 weeks, according to a statement from German authorities. This is a significant delay in processing, which usually takes two to four weeks.
Background: Germany implemented the European Union’s ICT Directive last year. Only employees with at least six months of experience in a corporate group are eligible to apply for ICT cards. Assignments for ICT card holders cannot be longer than three years for managers and specialists or longer than one year for trainees. ICT card applicants must apply for the cards before traveling to Germany.
Earlier this year, German authorities experienced delays in issuing ICT cards due to a system integration error. Authorities settled on an interim solution, but applicants continue to experience delays.
BAL Analysis: Employers should anticipate delays in the issuance of ICT cards for non-EU/EEA intra-company transfers. Other permit categories for non-EU/EEA intracompany transfers may be preferable, depending on transferees’ nationality, length of stay and the activities they will conduct while in Germany. Employers should consult with BAL to determine which option is best for any employees they are transferring or posting to Germany.
IMPACT – LOW
What is the change? Under proposed changes to the Schengen entry/exit system, passport checks at the region’s external borders would eventually be eliminated as the system becomes fully automated.
What does the change mean? Instead of needing a visa stamp, travelers would be required to undergo automated screening at kiosks, e-gates and other electronic systems at the border or within the Schengen territory or during the visa application stage.
Background: The automated system is one of several changes to the visa regime of the Schengen area that were proposed last month. According to EU-LISA, the agency responsible for implementing the future border system, passport stamping will eventually be replaced by automated services, but border officials will continue to oversee the automated procedures and it will be up to individual Schengen member countries to decide where and how many kiosks are to be installed.
BAL Analysis: The expansion of automated border controls and the other Schengen visa-liberalization proposals will facilitate travel, but may take years to be approved and implemented by the EU.
What is the change? The European Commission has proposed significant changes to the common visa policy of the Schengen Area, including seven-day visas-on-arrival, consistent rules on visa validity to prevent “visa shopping,” faster processing, and the potential introduction of e-visas.
What does the change mean? The reforms are intended to promote short-term visits and streamline visa services for low-risk and frequent travelers while deterring irregular migration by imposing mandatory security checks and linking visa policy with cooperation on readmission of undocumented immigrants.
BAL Analysis: If adopted, the proposals offer greater flexibility for non-EEA travelers to the Schengen region for business or tourism, particularly repeat and frequent travelers. The policy allowing for visas to be issued at the external borders will be a flexible option for individuals traveling on short-notice who do not have time to obtain a visa at a consulate.