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IMPACT – MEDIUM
The EU and U.K. have reached a provisional deal on the transition period that will follow March 29, 2019 when the U.K. formally withdraws from the EU. The transition period is meant to give businesses time to plan before new immigration and trade rules take effect.
Key provisions:
Background: Negotiators have been wrangling over the terms of the transition for the past month, and the deal reached reflects that the EU won concessions from the U.K. on nearly all of the terms it sought.
EU negotiator Michel Barnier said the deal marked “a decisive step,” while U.K. negotiator David Davis said it would allow businesses the ability to “plan for the future with confidence.”
BAL Analysis: While the terms of the transition deal are clearer, particularly regarding citizens’ rights and the length of the transition period, the overall withdrawal deal is still uncertain until it is ratified, which is likely to be in 2019. Companies should plan for EU employees in the U.K. (and U.K. employees in the EU) to retain their free movement rights through 2020, but are encouraged to pursue residency documents when eligible. Further changes are likely to occur as both the U.K. and the EU negotiate the terms of Brexit.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? Foreign authorities in Germany are not issuing German Intra-Corporate Transfer cards because of a system integration error.
What does the change mean? Due to the error, German foreign authorities are not issuing ICT cards or Mobile ICT cards. As an interim solution, eligible non-EU/EEA nationals may receive an interim letter or permit that is valid for six months and may be extended.
Background: Germany implemented the European Union’s ICT Directive last year, creating two new work permit categories for non-EU/EEA nationals who are transferred within the same corporate group to Germany. Only employees with at least six months of experience in the corporate group are eligible to apply. Assignments in Germany 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. Mobile ICT cards are available to holders of ICT cards issued by other EU countries who intend to work in Germany for more than 90 days in a 180-day period.
BAL Analysis: Employers should anticipate delays in issuance of interim permits for non-EU/EEA intracompany transfers, as well as delays once the ICT card and Mobile ICT cards are available. 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.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.
In an unprecedented move, the European Commission has triggered Article 7 of the Treaty on the European Union against Poland, calling for a vote of EU member states on whether the Polish government’s changes to its judiciary violate EU fundamental rights.
“[T]he Commission has today concluded that there is a clear risk of a serious breach of the rule of law in Poland,” the European Commission said in a statement Wednesday. “Judicial reforms in Poland mean that the country’s judiciary is now under the political control of the ruling majority.”
If 22 of the 28 member states and the European Parliament agree that Poland has violated the EU’s fundamental values, including the rule of law, Poland could be sanctioned and have its EU voting rights suspended.
Background: Poland became a member of the EU in 2004. In recent years, Poland has changed the structure of its judiciary, including lowering the retirement age of Supreme Court judges from 70 to 65 (60 for female judges), allowing lawmakers to choose judges, and allowing cases from the past 20 years to be reopened.
The Commission set out actions that Poland needs to take to reverse the changes and restore the judiciary’s independence in order to address the Commission’s concerns.
BAL Analysis: The Commission expressed its concern that without judicial independence, EU law would not be protected on a range of issues from family law to business investments to criminal law. However, even if Poland were to lose EU voting rights, such sanctions would not affect immigration or mobility between Poland and the EU, as free movement is one of the fundamental principles that could only be infringed by the loss of EU membership.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – HIGH
The European Union and the United Kingdom have reached a deal on phase one Brexit issues, with the U.K. making key concessions on the rights of EU citizens in the U.K. and agreeing to avoid formation of a hard land border between Ireland and Northern Ireland, and both parties agreeing to the methodology of a financial settlement.
EU and U.K. negotiators issued a 15-page joint report Friday detailing the agreement in principle and the commitments of each side to be reflected under a full withdrawal agreement. The agreement allows the negotiators to move on to phase two talks dealing with trade.
Key immigration-related provisions are summarized as follows.
Citizens’ rights:
Ireland and Northern Ireland:
The agreement recognizes the unique challenges presented by the U.K.’s withdrawal from the EU and notes that this agreement will not predetermine the outcome of wider discussions. Nonetheless, the following principles are key:
BAL Analysis: The agreement provides greater certainty for EU citizens living in the U.K. (and British citizens living in the EU) regarding their current and future rights and should help them plan accordingly. In particular, the cutoff date for retaining EU rights will not be earlier than the date of withdrawal, meaning that all EU nationals in the U.K. and British citizens in the EU exercising treaty rights on the day of Brexit will have these rights preserved at least until they have gained permanent residence. (This is likely to be called “settled status” under the U.K.’s domestic regime). They will be permitted to bring family members even after Brexit and after the two-year transition period. They will have their EU permanent residence rights recognized by the U.K., which provides an incentive to apply now for permanent residency. Those who have not yet accrued the five years needed for permanent residency will gain residence status using streamlined procedures with evidentiary flexibility that prevents rejection based on administrative errors and omissions.
Brexit negotiations have broken down over the issue of Ireland and Northern Ireland, as U.K. Prime Minister Theresa May’s proposal has been rejected by the Democratic Unionist Party, the largest party in Northern Ireland. The DUP is staunchly in favor of Northern Ireland remaining part of the U.K. and currently supports May’s minority government.
In a leaked draft proposal, May proposed that Northern Ireland keep some form of “regulatory alignment” with European Union regulations and remain in the single market, essentially creating an exception to the U.K.’s withdrawal from the EU. The DUP, however, sees the proposal as treating Northern Ireland differently from the rest of the U.K. and a step toward Irish reunification, which it opposes.
“We have been very clear,” DUP leader Arlene Foster said. “Northern Ireland must leave the EU on the same terms as the rest of the United Kingdom. We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom. The economic and constitutional integrity of the United Kingdom will not be compromised in any way.”
The breakdown of Brexit talks not only puts EU-U.K. trade talks on ice, but also weakens the fragile U.K. Conservative governing majority and could significantly complicate Brexit.
Ireland’s Prime Minister Leo Varadkar expressed surprise and disappointment at the last-minute failure of the EU-U.K. agreement that Ireland was ready to approve. He said that Brexit talks cannot move ahead without assurances from Britain that no hard border will be established between Ireland and Northern Ireland. “The ball is very much in London’s court,” he said. On Wednesday, according to press reports, the Irish government expressed its willingness to accept an additional provision within the EU-U.K. agreement stating that the agreement would not compromise the integrity of the U.K.
Those seeking a softer Brexit quickly seized on the moment to indicate that if Northern Ireland is exempted from Brexit, so too should others. Scotland’s First Minister Nicola Sturgeon said on Twitter that if one part of the U.K. can retain regulatory alignment with the EU and effectively stay in the single market, “there is surely no good practical reason why others can’t.” London Mayor Sadiq Khan and Wales’ First Minister Carwyn Jones chimed in, saying that their regions would also seek to remain in the EU single market.
BAL Analysis: The collapse of the agreement on Ireland threatens to delay or derail Brexit talks. May and the DUP reportedly have until Sunday at the latest to reach an agreement with the EU on the Irish border issue. This would conclude phase I of Brexit negotiations and is necessary before they can move on to discussions about the U.K.’s future trade relations with the EU. BAL is following all Brexit developments and will report on any new developments. For background on the Irish issues involved in Brexit, read BAL’s white paper, “Brexit: What’s at Stake for Ireland.”
What is the change? The European Union’s visa-free travel agreement with Ukraine is set to enter into force this weekend.
What does the change mean? Effective Sunday, Ukrainian nationals who hold biometric passports will be able to travel visa-free to Schengen Area countries for up to 90 days within a 180-day period.
Background: The European Parliament approved the visa waiver for Ukraine in April and the agreement was subsequently finalized. The change will allow Ukrainians to travel without a visa to the Schengen Area for up to 90 days in a 180-day period for business, tourism or family visits, but not for work.
The Parliament’s vote followed a European Commission recommendation to add Ukraine to the list of countries eligible for a Schengen visa waiver after determining that Ukraine had met key benchmarks on legal and political reforms. Negotiations over the visa waiver had been ongoing since 2008.
BAL Analysis: The waiver will benefit Ukrainians traveling to the EU (excluding Ireland and the U.K.) and ease consular visa processing. Ukrainian nationals should anticipate high demand for biometric passports and apply early. Travelers are reminded that a 90-day stay is calculated within a rolling 180-day period and, if not counted properly, can lead to overstays.
This alert has been provided by the BAL Global Practice group and our network partner in Ukraine. For additional information, please contact your BAL attorney.
In a case that clarifies and strengthens the concept of EU citizenship, the EU Court of Justice has ruled that a non-EU citizen, as the parent of a minor child who is a citizen of an EU country, may rely on a derived right of residence. The case, Chavez-Vilchez and Others, involved a Venezuelan woman whose EU citizen child was fathered by a Dutch citizen and who became the primary caregiver when the couple separated. Seven similar cases were consolidated, challenging Dutch authorities’ refusal to grant the mothers right of residence and access to social benefits.
The court reasoned that the mothers could rely on a derived right of residence if their children’s rights as EU citizens could be violated if forced to leave the EU.
If “the mothers were compelled to leave the territory of the EU, that could deprive their children of the genuine enjoyment of the substance of the rights conferred by virtue of their status” in violation of Article 20 of the Treaty on the Functioning of the European Union, the court ruled. The case builds on previous caselaw in which the court determined that Article 20 prohibits member states from taking national measures, including refusing a right of residence to family members of an EU citizen, that have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status.
The court clarified that the individual country’s courts, in this case in the Netherlands, should determine whether this would occur based on evidence of which parent is the primary caregiver, whether the child is in fact dependent upon the non-EU parent and taking into account the rights to family life and the best interests of the child. The non-EU parent bears the burden of proving that refusing him or her the right of residence would deprive the child of the genuine enjoyment of the child’s substance of rights as an EU citizen by forcing the child to leave the EU.
Notably, the court said that even if the EU citizen parent is willing and able to assume sole responsibility for the child’s daily care, this is a relevant factor, but is not alone sufficient grounds for concluding that the child is not so dependent on the non-EU parent such that the child would be forced to leave the EU if that parent is refused a right of residence. The domestic court should look at the best interests of the child and the individual circumstances including the child’s age, physical and emotional development and extent of emotional ties to the EU parent and the non-EU parent, and the risks of separation from the non-EU parent.
In the case of the Venezuelan national, where the family lived in Germany until 2011, the Dutch court should look at whether the mother can claim a derivative right to residence based on Article 21 of the TFEU and directive 2004/38 based on their rights to freely move and reside within the EU, and, if not, the court should conduct the analysis according to Article 20.
The case is: H.C. Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others, Court of Justice of the European Union, C-133/15. Read the full text of the decision here.
BAL Analysis: The case was closely watched, as a number of countries including Belgium, Denmark, France, the U.K. and others made observations and the ruling was made by a Grand Chamber of the Court, implying a serious issue of systemic importance. The ruling could further complicate Brexit negotiations as the rights of EU citizens in the U.K. are a top priority for the EU negotiating position.
The European Commission said this week that the EU will not impose a visa requirement on American travelers despite the U.S.’s refusal to include five EU member states in its Visa Waiver Program.
In March, the European Parliament adopted a nonbinding resolution in favor of a visa requirement for the U.S., which mandates visas for nationals of Bulgaria, Croatia, Cyprus, Poland and Romania. The Commission, the EU’s executive branch, declined to do so, however, with officials saying that suspending visa-free access to the EU would be “counterproductive at this moment and would not serve the objective of achieving visa-free travel for all EU citizens.”
Commission officials said that they will report on progress they make working with the U.S. on visa reciprocity before the end of the year.
The Commission also said it would continue visa-free access to the EU for Canadian nationals. Canada provides visa-free access for nationals of all EU member states except Bulgaria and Romania. Beginning May 1, however, Canada implemented a visa exemption for Bulgarian and Romanian nationals who have held valid Canadian visitor visas within the last 10 years or currently hold a valid U.S. nonimmigrant visa. A full visa waiver for Bulgarian and Romanian nationals is set to take effect Dec. 1.
“Our goal is and remains to obtain full visa reciprocity with both Canada and the U.S.,” said Dimitris Avramopoulos, Commissioner for Migration, Home Affairs, and Citizenship. “Our continued engagement and patient diplomatic contacts over the past year have brought tangible results already with Canada, and we are committed to proceeding in the same way with the U.S. Dialogue with our strategic partners is the right way forward and we are on the right track.”
BAL Analysis: U.S. and Canadian travelers will continue to be able to travel to EU member states without first obtaining a visa. While the EU’s dispute with Canada appears to be near a resolution, the dispute with the U.S. could continue for months or longer. The EU’s visa-reciprocity rules require countries that are permitted visa-free travel to the EU to reciprocate to all EU member states. The U.S, however, considers each country on its own terms and so far has been unwilling to include Bulgaria, Croatia, Cyprus, Poland or Romania in its Visa Waiver Program. The Commission has made it clear that visa-free travel to the EU for U.S. nationals will, in any case, continue for the time being.
What is the change? The European Commission moved this week toward implementing a series of measures aimed at boosting the single market, including measures that would make it easier to relocate within Europe or establishing a business in Europe.
What does the change mean? Among other changes, the European Union would set up a program to make it easier to complete processes such as obtaining birth certificates, registering for social security benefits, registering business activities or paying employee benefit contributions. The Commission is also seeking to help EU companies that encounter difficulty with public administrations when conducting cross-border business or relocating.
Background: The changes are part of the EU’s Single Market Strategy, an initiative started in 2015 to “unleash the full potential” of the single market.
The measures include establishing a “single digital gateway” to make it easier to obtain information on working, moving and starting a businesses in any of the EU member states. The digital gateway would aid businesses and individuals in completing tasks such as obtaining birth certificates, registering for social security benefits, registering business activities and paying employee benefit contributions.
The Commission also said it would develop a “single market information tool” aimed at providing businesses with “comprehensive, reliable, and accurate market information.” It also plans to develop a SOLVIT action plan to help companies if they experience difficulties with public administrations when conducting cross-border business or moving locations.
BAL Analysis: While the changes described above will not be implemented for some time, they represent an attempt by the European Commission to smooth over some of the common difficulties companies have when conducting business in or relocating within Europe’s single market. Additional information is available at a European Commission FAQ page on the series of measures.
The State Department issued a travel alert this week, highlighting the possibility of terrorist attacks in Europe this spring and summer.
Key points:
Background: The State Department’s alert follows attacks in France, Russia, Sweden and the United Kingdom this year. The department issued similar alerts in May and November of 2016 and said Monday it “remains concerned about the potential for future terrorist attacks.”
BAL Analysis: Foreign nationals traveling or residing in Europe should exercise caution throughout the spring and summer. Companies with employees outside the U.S. should (1) register their employees with the appropriate U.S. embassy; (2) establish evacuation plans; (3) develop visitor logs; and (4) have employees carry copies of their passport at all times.
U.S. companies overseas should (1) engage with the Overseas Security Advisory Council (OSAC) and (2) develop an emergency communication system. Employers may wish to encourage their employees to enroll in the Smart Traveler Enrollment Program, a free service that provides updated security information and allows Americans to register their trips abroad with the closest U.S. embassy or consulate.
This alert has been provided by the BAL Global Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.