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IMPACT – MEDIUM
What is the change? The European Commission has proposed prolonging for three months temporary internal border controls in Austria, Denmark, Germany, Norway and Sweden. The proposal is expected to be adopted by the European Council.
What does the change mean? Travelers should continue to expect border controls and document checks when traveling in certain parts of Europe. Controls in the following locations would be extended under the Commission’s proposal:
Background: The Commission’s proposal follows a decision in May to permit internal border controls along the borders or check points listed above for six months. In a statement, the Commission said that while Europe has seen a “significant decrease in the number of arrivals of irregular migrants and asylum seekers” in recent months, “a significant number of irregular migrants” still remain in Greece and other Schengen Area countries affected by the movement of migrants out of Greece. The Commission, therefore, recommended that the border controls be extended for an additional three months, while directing countries that carry out border controls to submit monthly reports on the controls and their continued necessity.
BAL Analysis: While the flow of migrants to Europe has slowed, the EU is still grappling with the effects of the migrant crisis. The European Commission said that Europe is on the right path to return to a Schengen Area without border controls, but that the conditions that would permit “a normally functioning Schengen area are not yet fully fulfilled.” Controls on the borders and checkpoints listed above will be extended for three months. Travelers should anticipate the possibility of delays when traveling in affected areas.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Copyright © 2016 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? A regulation designed to ease document authentication requirements for European Union nationals relocating within the EU has been finalized and is set to take full effect Feb. 16, 2019.
What does the change mean? Once the regulation takes effect, EU nationals will no longer be required to authenticate most documents when moving to another member state. The regulation will ease intra-EU relocation by eliminating onerous apostille and legalization processes. It will also simplify translation requirements by allowing EU nationals to request standard-issued multilingual forms to attach to public documents such as birth and marriage certificates, among others.
Background: The European Parliament approved the regulation in June, and it has since been finalized and published. As it stands now, EU nationals moving to, or residing in, another EU member state must obtain authentication stamps on public documents when submitting them to authorities in the new state. The regulation will remove these requirements, as well as those to submit a certified copy and certified translation of documents in question.
The regulation will apply to documents related to a person’s birth, death, name, marriage, divorce, legal separation or marriage annulment, registered partnership, dissolution of registered partnership, parenthood, adoption, domicile or residence, nationality, absence of a criminal record and right to vote. Diplomas and certificates of formal qualifications will not be covered and, at least initially, will be subject to the same authentication rules as they are now.
BAL Analysis: The regulation will reduce bureaucratic hurdles and improve mobility for EU nationals and ease the relocation of employees within Europe.
The following is a roundup of recent developments concerning Brexit negotiations and the United Kingdom’s withdrawal from the European Union.
Political
Immigration
Legal
BAL Analysis: While the change in leadership has been accelerated, Brexit procedures have not yet formally begun. There has been no immediate change to the immigration status of EU workers in the U.K. or to British workers in the EU. BAL will continue to update clients on significant developments as Brexit negotiations proceed.
What is the change? European leaders are meeting in Brussels to discuss the European Union’s visa waiver program for U.S. and Canadian nationals and to set out their position on a possible suspension of the visa waiver. In April, facing a legal deadline, the European Commission set a July 12 deadline for the Parliament and Council to take a position on the matter.
What does the change mean? The issue is that the EU has lifted visa requirements for U.S. and Canadian nationals while the U.S. and Canada have not fully reciprocated for all EU nationals. Canada continues to require visas for nationals of Bulgaria and Romania, and the U.S. continues to require visas for nationals of Bulgaria, Croatia, Cyprus, Poland and Romania.
In a joint statement Monday, the European Commission and Canada’s Immigration Minister announced that Canada will inform the EU in early autumn on its assessment and timelines for lifting visas for Bulgaria and Romania. The two Eastern European countries have threatened to veto a pending Canada-EU trade agreement unless Canada lifts visas for their citizens.
Background: According to EU law, full reciprocity is required under visa-waiver agreements, and a process is in place to suspend a visa waiver agreement when a country does not fully reciprocate on visa waivers. Under U.S. and Canadian law, however, countries are only permitted to participate in their visa-waiver programs if they meet certain criteria, such as low visa refusal rates, which the excluded countries do not yet meet.
BAL Analysis: A suspension of the visa waiver for U.S. or Canadian nationals is unlikely because of the serious negative economic, logistical and political consequences to Europe, as outlined in the European Commission’s April report.
It appears that Canada will continue to work toward lifting visa requirements and delay its assessment until fall, and it is hoped that the U.S. and the EU will also reach an agreement that avoids suspension of visa waivers. BAL is following the commission’s meetings and will report developments on this issue.
The British electorate will vote Thursday on whether the United Kingdom should leave the European Union. During the final countdown to the “Brexit” referendum, campaigning for both the “Leave” and “Remain” camps will intensify, but current polls show the “Leave” campaign has the majority.
Employers should anticipate that it is more likely than not that the U.K. will leave the EU and, from an immigration perspective, is unlikely to continue to be subject to European rules on free movement of people.
Political Background
The stakes in the Brexit referendum are huge, as it will define Britain’s legal relationship with its European allies, its position on the global stage, and will impact the ongoing stability of the EU. Immigration policy has been a key issue during the Brexit debate, due to the immediate refugee crisis, but also because of longer term social changes and pressures in the U.K. that many attribute to migration. The legal rights of free movement of goods, services and people that underpin the EU’s creation of a single market will most likely be lost in the U.K. if the U.K. chooses to leave the EU. Going forward, U.K. employers may not have the ability to move employees freely as assignees or to deliver specific contracts or take advantage of helpful rulings from the European Court of Justice that allow great immigration flexibility against restrictive national legal regimes. Employers should take steps to evaluate their exposure in event of Brexit, and be prepared to communicate with affected employees as any changes take place.
Who is affected?
The immigration impacts of leaving the EU will be felt on four employee populations:
Next Steps
It is essential that employers prepare for managing their response to the referendum result and devote some time to strategize how recruitment and employment practices (among other economic, legal, social and political factors) would be impacted by a “Leave” vote. BAL recommends that employers take all practical steps to prepare for the Brexit result next week, including:
Work in the U.K. on basis of European passport and have a long-term right to work, and so may not currently be tracked.
Work in the U.K. on an EEA Family Permit/Residence Card and have a time-limited right to work, and so should already be tracked.
Work within Europe on the basis of a British passport, but are managed from the U.K.
Employers can consider whether “leave” or “remain” will best serve their business and future job security for their employees, and whether it is appropriate to communicate the company’s position with employees.
Employers may want to prepare an all-office press release for either eventuality, to reassure both British and European employees. The aim should be to reduce panic and manage any transition. BAL can provide suggested text.
Additional information: BAL is running a seminar on the immigration impacts of Brexit on Monday and can provide advice on communications and strategy to minimize business and employee disruption in the event of a Brexit.
What is the change? The European Union has adopted rules that will make it easier for non-EU students, researchers and their families to enter, remain and work in most EU countries. Denmark, Ireland and the United Kingdom are not part of the agreement.
What does the change mean? The directive instructs all opted-in EU countries to ensure that their national laws comply with the new regulations within two years. Under the new rules, non-EU students and researchers will be allowed to remain in the EU for nine months after completing their coursework or research and will be afforded greater mobility within the EU without having to apply for a new student or researcher visa each time. Family members will be permitted to work and reside in Europe during a researcher’s stay. Students will be permitted to work for at least 15 hours per week.
Background: The directive was proposed in 2013 to harmonize existing EU law on students and create a single approach to visas for non-EU student and researchers. The directive was published in the Official Journal of the European Union on May 21, 2016 and requires participating EU member states to incorporate the following into their immigration laws:
BAL Analysis: This harmonization of the rules should make it easier for non-EU students and researchers to move to, remain and work in most EU countries. The changes will benefit students and researchers, higher-education institutions that recruit them, and European employers that rely on student and researcher labor and expertise. The rules are of particular interest to research and development companies and departments in the technology, engineering and pharmaceutical sectors, either working in collaboration with higher-education institutions or as private research organizations. Policies may differ among EU countries, as each country will approve a list of research organizations under its national laws. Because member states have two years to incorporate the directive into national law and many specifics have been left to national interpretation, the new rules may not provide an immediate benefit. Students and researchers in Denmark, Ireland and the U.K. will continue to be managed under those countries’ respective national immigration rules because the three countries have opted out of the directive.
What is the change? The Council of the European Union has proposed a measure to make it easier to suspend visa-waiver agreements.
What does the change mean? The proposal would expand the grounds for suspending visa-waiver agreements with non-EU countries and accelerate the process. The measure would apply to all countries that currently enjoy Schengen visa-free agreements, but is primarily aimed at prospective visa-free agreements with Georgia, Kosovo, Ukraine and Turkey.
Background: The proposal would strengthen the mechanism for an EU member state to suspend a country from visa-free agreements. The grounds for suspension would include a substantial increase in illegal migration from the participating country, lack of cooperation on taking back irregular migrants, or increased risks to the internal security of an EU member state. The European Commission would monitor whether criteria are being met and report annually to the European Parliament and Council.
The European Commission has recently recommended extending Schengen visa-free travel to nationals of Georgia, Kosovo and Ukraine. An agreement with Turkey to resettle refugees in exchange for the visa exemption currently hinges on Turkey meeting remaining goals, namely narrowing its terrorism laws to not include political activists.
BAL Analysis: The new measure may further delay visa-free Schengen travel for Turkish nationals and would allow existing agreements to be more easily subject to suspension.
IMPACT – HIGH
What is the change? The European Commission on Wednesday recommended that the European Union grant Turkish citizens visa-free travel to the Schengen area as part of a deal on the refugee crisis.
What does the change mean? Even though Turkey has not met 72 benchmarks set as conditions to the visa waiver, the proposal paves the way for EU member states to lift visa requirements once the remaining benchmarks are met. If the EU approves the visa waiver, Turkey has approved reciprocal visa-free travel for EU nationals (including Greek Cypriots) visiting Turkey.
Background: Under a deal reached in March, Turkey agreed to resettle migrants who had illegally crossed into Greece through Turkey and to prevent further irregular crossings. In exchange, the EU agreed to financially assist Turkey in resettling refugees and to grant visa-free travel to Turkish nationals visiting the Schengen region. At that time, Turkey had not met 72 benchmarks under the visa liberalization roadmap, potentially delaying the June 30 target date for visa-free travel. Turkey threatened to withdraw from its end of the deal if the EU did not grant the visa waiver.
The Commission indicated today that Turkey had made “impressive progress” in meeting the goals. The areas that remain unfulfilled include human rights reforms and biometric passports.
BAL Analysis: Since the March agreement, the number of refugees reaching Europe has dropped considerably, providing incentive for the EU to follow through with its agreement to eliminate visas for Turkish citizens even without Turkey having fully met the roadmap’s requirements. If approved by the European Parliament and member states, visa-free travel between Turkey and most of Europe could be available in approximately two months. While visa-free travel greatly assists employers and businesses operating in or transacting with Turkey, it also plays to the political rhetoric of the Brexit campaign and other Eurosceptics who fear an enlarged Europe and greater visa liberalization, particularly in that region.
What is the change? The European Commission has recommended that Ukraine be added to the list of countries whose nationals are eligible for visa-free Schengen travel for business and tourism purposes.
What does the change mean? If approved by the EU Council and Parliament, Ukrainian citizens holding biometric passports will be able to travel to the Schengen area without a visa for stays of up to 90 days in a 180-day period.
Background: Negotiations between the EU and Ukraine over the visa waiver have been ongoing since October 2008. The European Commission announced Wednesday its proposal to add Ukraine to the Schengen visa waiver scheme, stating that Ukraine has met key benchmarks on legal and policy reforms that were set as preconditions to visa liberalization.
BAL Analysis: If approved by the EU Council and Parliament, the visa waiver would benefit Ukrainian nationals traveling to mainland Europe for business, tourism and family visits. Ukraine ranks second in the number of visa applicants at German consulates around the world (Russia being first). The U.K. and Ireland are not part of the Schengen area and visas would still be required for Ukrainians traveling to those two countries.
What is the change? The European Commission has released the results of a public consultation on the EU Blue Card and EU high-skilled labor migration policies.
What does the change mean? The responses to the consultation from employers, high-skilled migrants and other stakeholders will help inform steps the EU will take to improve the EU Blue Card scheme and migration policies to better attract high-skilled workers.
Background: The European Commission is in the process of reviewing the EU Blue Card Directive as part of its agenda on legal migration. The consultation was open from May through September and sought comments from employers, employer associations, non-EU nationals within and outside the EU, trade unions and other stakeholders. A total of 625 contributions were submitted from stakeholders.
The key findings are:
The full summary of responses is available here.
Additional information on the consultation is available here.
BAL Analysis: The public comments to which BAL contributed confirm that the EU Blue Card is underutilized by businesses, and its scope should be broadened and procedures streamlined to improve its attractiveness as a route for employers to use in bringing skilled non-EU workers to Europe.